LAW 605FAMILY LAW I TENGKU AMANINA BT TENGKU AZHAR 2011839772 CHRISTINE KIMBERLY BUJI 2011865642 SITI NUR ATHIRA BT ABDUL KAHAR 2011481992 Farisha seeks your advice as her 'Peguam Syarie' in the following matters: Question A Farisha has been married to Firdaus for 10 years. When she was informed that her husband has contracted a second marriage, she felt frustrated and betrayed. She moved to her parents' house and lived with her parents for four months. During this period, Firdaus did not give her maintenance. She wishes to claim the maintenance from her husband. (5 marks) Issue The issue is whether Farisha can claim maintenance from her husband LAW Maintenance of Wife during a Subsisting Marriage • Al-Quran: – An-Nisa 4:34 “Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means.” – Al-Talaq 65:7 “Let the man of means spend according to his means and the man whose resources are restricted, let him spend according to what Allah has given him.” – Al-Baqarah 2:233 “But he shall bear the cost of their food and clothing, on equitable terms.” • Hadiths: – Jabir bin Abdullah narrated ‘fear women… their private part made lawful with the word of Allah… they have got (right) over you in respect of their food & clothing according to means agreed.’ – The Prophet SAW said ‘Fear Allah in respect of your wives, they are in your care and control, they do not possess any means and you should give them clothing, food and other necessities;…’ – Basically, the hadiths imposes a duty on the husband to maintain the wife. A husband will enjoy conjugal benefit from the wife and the wife must be obedient. • Conditions for Maintenance: 1. During subsisting of a valid marriage. If void marriage, the wife is not entitled. 2. When couple can derive benefit (when wife can perform marital obligations) 3. Wife is not nusyuz. • If wife left house and she returns home, she is entitled for the maintenance. • If she goes musafir without her husband’s permission, she will not be entitled for the maintenance. • When maintenance lapse: 1. 2. 3. 4. When wife says no need to pay maintenance If husband died When wife is nusyuz When wife is murtad • Statutory Provisions: 1. Section 59(1) of the IFLA (FT) 1984 provides that the Court may, subject to Hukum Syara’, order a man to pay maintenance to his wife. 2. Section 59(2) of the IFLA (FT) 1984 provides that subject to Hukum Syara’, with confirmation by the Court , a wife shall not be entitled to maintenance when she is nusyuz or unreasonably refuses to obey the lawful wishes and commands of the husband. For instance if she withholds her association from her husband or when she leaves her husband’s home against his will or when she refuses to move with him to another home or place without any valid reason. 3. Section 59(3) of the IFLA (FT) Act 1984 As soon as the wife repents and obeys the lawful wishes and commands of the husband, she ceases to be nusyuz. 4. Section 48(2) of the Kelantan Islamic Family Law Enactment 1983 Wife shall not be entitled to maintenance if she is nusyuz, but if she repents and obeys the lawful commands of the husband, she is entitle to the maintenance. However, this enactment does not provide instances of what is to be regarded as nusyuz by the wife. • Cases: 1. Hj Ali v Aishah (1981) • The wife claimed maintenance from her husband. They have been married since 1972 and had lived for about a year when the wife left the husband to live in a different house and then with her mother. She claimed that she was forced to leave because of the differences with the first wife of the husband. The husband’s defence was that the wife had left him to go back to her mother’s house and had refused to return to him. The learned Chief Kadi favoured the wife and ordered the husband to pay RM 1,710. • • • • The husband appealed and the Appeal Board allowed the appeal and it was held that two important matters were not considered at the trial: – Whether in leaving the house the house the wife was guilty of nusyuz or not – Whether the husband was able to give maintenance to the wife, as evidence showed that he was old and ill and had no income or property. • There are important issues that were not discussed. The Appeal Board ordered retrial. 2. Abdul Kadir v Hajjah Fatimah • The wife’s claim for maintenance was accepted by the Court based on her oath. She claimed that her husband had not paid her maintenance for 15 months since he sent her back to her grandfather’s house. • He however alleged that she had return on her accord. • The wife took the an oath that it was the husband who sent her and the Kadi allowed the wife’s claim. APPLICATION – In applying the laws stated above to the situation at hand, according to the Al-Quran, based on Surah AnNisa 4:34 it is stated that, “Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means.” – Thus generally a husband, and in this case, Firdaus is obligated to protect and maintain his wife, Farisha. – Besides, based on the hadiths stated a duty is imposed on Firdaus to maintain Farisha as he will enjoy conjugal benefit from her provided that she too, is obedient. – Based on Section 59(1) of the IFLA (FT) 1984, the Court may, subject to Hukum Syara’, order him to pay maintenance to his wife. – Section 59(2) of the IFLA (FT) 1984 provides that a wife shall not be entitled to maintenance when she is nusyuz or unreasonably refuses to obey the lawful wishes and commands of the husband. – For instance if she withholds her association from her husband or when she leaves her husband’s home against his will or when she refuses to move with him to another home or place without any valid reason. – In this situation, Farisha who moved to her parents' house and lived with her parents for four months when she was informed that Firdaus has contracted a second marriage, shows that she is nusyuz. By virtue of Section 59(2), she shall not be entitled to maintenance. – In case of Hj. Ali v Aishah, the husband’s appeal was allowed because it was held that two important matters were not considered at the trial. – One of them is whether in leaving the house, the wife was guilty of nusyuz or not as she left as she left him and moved to her mother’s house, refusing to return to him. – Thus, to apply this case to our situation at hand, the act of Farisha leaving the house for four months which makes her guilty of nusyuz is of a great importance in determining whether maintenance should be granted to her or not. Conclusion Farisha cannot claim maintenance from her husband as she is nusyuz Question B She went back to her house when Firdaus came and persuaded her. He promised to treat both his wives fairly. However, since her husband took a second wife she has lost her respect and love for him. Her life was miserable and she thought she would be better off without her husband. She wanted a divorce but her husband refused to divorce her. Her husband has stated that he still loved her. She admitted that her husband has treated her well but she could not accept the idea of sharing her husband with another woman. She insists on the divorce. (10 marks) Issue The issue is whether Farisha may apply for a divorce from her husband, Firdaus. Law It is also possible for a Muslim woman to apply for what is in effect an annulment of the marriage by the process known as fasakh and also to apply for a divorce with the consent of the husband on payment of compensation by the process known as Khulu’ Surah Al-Baqarah 2:229 “If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom” Hadith Jamilah, the wife of Sabit bin Qais came to the Prophet and made a complaint about her husband: “O Prophet, nothing can bring me and him together unless I raise my veil he was coming from front with some men. I swear by God, I do not hate him because of any defect of with his religious or world but I dislike his ugliness. I swear by God that if I did not fear God, I would have spit on his face when he comes to me. O Prophet, you see how beautiful I am and Sabit is an ugly person. I do not blame his religion or world but I fear I may be guilty of transgression of the injunction of Islam.” Meanwhile, the Prophet said to her: “Are you prepared to return the garden that he gave you as dower.” She said “Yes and if he demands more, I am ready to give more.” The Prophet then said “No, not more than he has given to you” and he asked Sabit to take the dower and release her. Section 49 of the Islamic Family (Federal Territories) Law Act 1984 has adopted Maliki interpretation and provides that consent of the husband is required in the case of Khulu’. Talib v Che Sepiah the wife asked for divorce. Husband disagreed even by Khulu’. Court appointed second Hakam for the husband as he disagreed with the Khulu’ idea. The second Hakam agreed to divorce by Khulu’ and the husband appealed. However so, the appeal was dismissed. In applying the law to Farisha’s situation here, Farisha came back to the house after being persuaded by the husband, Firdaus. He treated her well, but Farisha lived in miserable as she could not accept the idea that her husband has married to another woman and she has to share him. Based on Surah alBaqarah 2:229, this verse allowed the married couple to divorce in peace. Due to the reason of Farisha is miserable of her life and is not happy with her marriage anymore as she has to share him with another woman, Farisha may apply for Khulu’ because in this situation, Firdaus, the husband, refused to divorce her because he still love her. Question C She has stated that during their marriage, her husband, a Chief Executive Officer (CEO) in a well known company, has bought many properties. Among his properties are two bungalow houses, three shop lots and three luxury cars. All the properties are registered in the name of her husband, except their matrimonial house of which she is the joint owner. Soon, upon his retirement he will be getting his Employment Provident Fund (EPF) money worth one million. She wants to know whether she has any right over those properties and the EPF monies in case there is a divorce between them. (10 marks) Issue Whether Farisha has rights over the properties registered under her husband’s name and his EPF money in case there is a divorce between them. LAW Harta Sepencarian (Jointly Acquired Property) • Al-Quran – Surah An-Nisa 4:32 “and in no wise covet those things in which Allah has bestowed His gifts more freely on some of you than on others: to men is allotted what they earn, and to women what they earn: but ask Allah oh His bounty. For Allah has full knowledge of all things” • Islamic views: – Al-A’adah Muhakkamah • Islam acknowledges that custom, either specifically or generally, is one of the sources of Islamic Law and a custom can be accepted when it becomes common usage and the norm – Syarikat Al Abdan • is the means of two people sharing an occupation with each one contributing his/her energy without any property or capital • all properties acquired from the work of husband and wife which cannot be distinguished are divided between the two according to a reasonable wage and should one of them or both die, the heirs of the deceased from both will take the portions that they receive to be divided according to faraid. 67th Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia • Muzakarah telah memutuskan bahawa Wang caruman KWSP tidak boleh dianggap sebagai harta sepencarian dan menetapkan wang tersebut sebagai harta pusaka yang perlu dibahagikan mengikut hukum faraid. • Di bawah Akta KWSP 1991, Seksyen 51, Simpanan KWSP ahli yang masih hidup adalah hak mutlak pencarum untuk kebajikan mereka pada hari tua yang tidak boleh dipindahkan kepada pihak lain. • Statutory Provisions: 1. Section 2 of IFLA (FT) 1984 – “Harta Sepencarian” means property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syarak • It is due to the joint effort or joint labor that a divorced spouse is entitled to a share in the property. • i) Joint efforts property: both husband and wife works and buy it. The share will be equally distributed according to their distribution • ii) Sole efforts property: only one party acquired the property. If wife takes care of the children etc, then court will consider her contribution 2. Section 122(1) & (2)(a) of the IFLA (FT) 1984 • The Court shall have power to order the division between parties of any assets acquired by them during their marriage by their joint efforts or sale of any assets and the division between the parties of the proceeds of sale • The court shall have regard to the extent of the contributors made by each party in money, property, or labor towards the acquiring of the assets Cases 1. Boto v Jaafar (1985) 2 MLJ 98 Husband ran a fish business which flourished after the marriage. The wife took no direct part in the business but she accompanied her husband in many of his business trips. H: the fact that the wife accompanied her husband in his business trips and giving up employment because of her marriage amounted to her joint efforts in the acquisition of the properties and declared that she was entitled to a 1/3 share of the properties acquired during the marriage. In the case of one of the boats which were registered in their joint names, the judge ordered it to be divided equally. Cases 2. Tengku Anun Zaharah v Dato Dr Hussein (1980) 3 JH 125 During the marriage, the husband acquired five pieces of land and five shops. They were acquired by sole efforts and ability of the husband while the wife did not make any contribution in money or labor. H: wife made a “moral” contribution since the husband also partly owed his rapid success in business that he had been able to enjoy due to the wife’s status as a member of royalty. – The “moral” contribution of a spouse who made no financial contribution is also entitled to a share of the property acquired during the marriage by looking after the home or caring welfare of the family Cases 3. Rokiah v Mohamed Idris (1987) 6 JH 272 The divorced wife claimed for a land in KL, shares and money in banks as harta sepencarian from her husband. H: It should be taken into account of the indirect contribution of the wife in looking after the household, the husband and the children for the period of over 35 years of the marriage. She was given 1/3 of the properties. Cases 4. Che Mas Abdullah v Mat Sharie Yaakub A divorced wife brought a claim for her exhusband’s EPF money as harta sepencarian worth RM36,000. H: Only the aggregate deductions of the member salary for payment to the EPF is harta sepencarian. The employers contribution and dividends: estate. However, the wife’s claim was lack of evidence and claim for her ex-husband’s EPF failed. Application • according to Section 2 of the IFLA (FT) 1984, the properties acquired by Firdaus during their marriage are two bungalows, three shop lots and three luxury cars. • These properties are considered as harta sepencarian under the section mentioned above and this presumption will stand until Firdaus can prove to the court that the properties were acquired by his sole efforts. • In applying the decision in the case of Boto v Jaafar and Tengku Anun Zaharah v Dato Dr Hussein, although it was not mentioned that Farisha contributed financially to the acquisition of the properties registered under her husband’s name, it could be implied that her constant companionship was responsible for Firdaus’s peace of heart and mind. • In analyzing the properties acquired by Firaus, it can be presumed that he works in a fast-paced money making business, and inevitably, much of the household responsibilities goes to Farisha. • In the period of 10 years of marriage, Farisha had been taking care of the welfare of the family and gave her continuous “moral” support to Firdaus. • It is of no question that Farisha as a wife had made a huge contribution in taking care of their family while Firdaus was at work, bearing the responsibility of a CEO. • Following the decision in Rokiah v Mohamed Idris, Farisha is entitled to one third of Firdaus’ properties for the moral support and constant companionship she has given. • Applying Surah An-Nisa,verse 32, Farisha and Firdaus should be allotted with what they earn. • Since Farisha has not made direct contribution to the acquisition of the properties, she would still be entitled to a portion of his properties and half of share of the matrimonial home in which she is the joint owner. • And applying the recent Fatwa by Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia, Farisha is not able to claim for her husband’s EPF savings reason being; it does not fall under harta sepencarian (as explained earlier). Conclusion Farisha can only claim one thirds of the properties registered under her husband’s name and half of the share of the matrimonial home. Her husband’s EPF will only be available for distribution according to Faraid. Question D If there is a divorce, she wants to know whether she is entitled for mutaah. (5 marks) ISSUE The issue is whether Farisha is entitled for mutaah if she gets a divorce Law • Al-Quran: – Al-Baqarah 2:241 “ For divorced women muta’ah should be provided on a reasonable scale. This is a duty on the righteous. • Statutory Provisions: – Section 2 of the IFL (FT) Act “muta’ah means a consolatory gift that is reasonable according to Hukum Syarak, given to a divorced wife. – Section 56 of the IFL (FT) Act A woman who has been divorced without a just cause by her husband may apply to court for muta’ah. But if she is nusyuz (a just cause) she will not be entitle for muta’ah. • Cases: – Tengku Anum Zahrah v Dato Dr Hussein (1980) • A divorced wife claim for muta’ah. It was found that the husband was the one who effected the divorce and there was no evidence to show that the wife was nusyuz. • It was held that the husband had to pay RM 25,200 as a muta’ah. APPLICATION • Based on Section 56 of the IFLA (FT) Act, a woman who has been divorced without a just cause by her husband may apply to court for muta’ah. But if she is nusyuz (a just cause) she will not be entitle for muta’ah. • In this situation, Farisha is nusyuz because she had left her husband’s house for four months, being nusyuz is a just cause for her husband to ask for a divorce. • Hence, she will not be entitled for muta’ah. • Besides, n the case of Tengku Anum Zahrah v Dato Dr Hussein, there was no evidence of nusyuz, so the husband had to pay muta’ah. This contradicts the situation we have at hand, where there is evidence of nusyuz. So, Firdaus need not pay muta’ah to Farisha Conclusion Farisha is not entitled to get muta’ah if she gets a divorce.
Report "Islamic Family Law - Muta'ah, Harta Sepencarian"