Custody, Maintenance & Matrimonial Assets (Syariah)

(Hadanah) and Guardianship of Children

In Islam, a mother is given the primary right to the physical custody or hadanah of her child. Under the IFLE (Islamic Family Law Enactment), a father has the primary guardianship rights to the child. The guardianship rights mainly refer to decisions about the legal and  property rights of the child. In any case, the father will always have the primary responsibility to maintain the child. Rights to guardianship and physical custody may be modified by the Court if the relevant party breach conditions provided by the IFLE.

In deciding the guardianship rights, the person must be:-

(a) a Muslim
(b) a person of sound mind and age;
(c) living in a environment suitable for a child; and
(d) a person of good behaviour in Islam.

 Maintenance for wife

According to the Hukum Syara’, the Court has power to order the husband to pay maintenance to his wife. The Court has the power to also order a collateral to be made with the maintenance.

In deciding the amount of maintenance to be ordered, the Court will consider:
(a) the earning capacity of the husband; and
(b) financial needs of the wife.

A wife’s right to maintenance may cease when:

(a) when the wife dies;
(b) when the wife is disobedient (nusyuz); and
(c) when the wife remarries.

Maintenance for children

In Islam, it is the husband’s responsibility to maintain the children whether the children lives with him or with his wife or any other person. He must provide accommodation, food, clothing, medical treatment and education in accordance to his ability and capacity
or pay costs instead. The order for maintenance expires when the child attains eighteen (18) years of age.

Matrimonial Assets

Matrimonial assets are assets both parties acquire during marriage. In this situation the Court will normally order a sale of the property and divide the proceeds of the sale between the parties. The Court will also take into consideration the following when making the order:-
(a) How much you and your husband contributed in money terms to obtain assetsyour role as a housewife will also be taken into consideration as a financial contribution.
(b) Any loan borrowed by either of you for the benefit of the family is also considered.
(c) The needs of the minor children, if any of the marriage.

Harta Sepencarian

Where the asset is acquired by the sole effort of one party only, the Court shall consider the following facts in dividing assets:-
(a) The extent of contribution made by the other party who did not acquire the property, to the welfare of the family e.g. keeping the house clean, cooking and generally, looking after and caring for the family; and
(b) The needs of the minor children, if any of the marriage.

Other Property

Any property that belongs to the wife before or after marriage is solely the wife’s property and the husband can have no claim over the property except to the extent that he has contributed to the improvement of assets.