ANCILLARY ORDERS ON DIVORCE

In Malaysia, where divorce has took place either by way of pronouncement of talaq or
any other ways, it must be recorded and registered in the Registrar of Divorces

In Malaysia, where dissolution has taken place either through talaq pronouncement or by
any other means, it must be recorded and registered in the Divorce Registrar.
In S.55 of IFLA, no pronouncement of talaq or divorce or annulment can be registered
except if the Chief Registrar is satisfied that the Court has made a final order.
Among other orders which the Syariah court will also make upon divorce such as child
custody and child maintenance, a divorced wife's maintenance and accomodation such as
shelter and muta'ah payment

Maskahwin
Maskahwin or Mahar on marriage is payable. It is a compulsory marriage payment by the
husband to the wife in accordance with the hukum syarak at the time of the marriage. The
wife is entitled to the payment upon divorce in the event that the maskahwin has not been
paid and has not been remitted by the her.

Surah Al-Nisa 4:4

“Give to the women (whom you marry) their bridal-due (mahr) willingly and for good
(i.e. without expecting a return)..”

S.57 of IFLA stated that a woman going through a divorce would not affect her rights in
getting the maskahwin as according to hukum syara.

In the case of Salma v Mat Akhir, the divorced wife applied for the payment of
maskahwin of $600 which the husband has not paid her yet.

 In the case of Rosnah v Ibrahim, the divorced wife applied for the payment of her
maskahwin of RM58 and the balance of marriage expenses to a total of RM300. It
was held he Qadhi ordered the husband to pay the balance of marriage expenses of
RM300 because the maskahwin has already been paid after the hearing of the alleged
case made by the wife earlier.

 In the case of Siti Zamrah v Maliki, the wife claimed for the payment of maskahwin
and pemberian. However the husband claimed the wife consented to give all the
property to facilitate divorce. The wife to took an oath to deny such statement. It was
held that the Kadhi ordered the husband to pay total of RM770 to the wife.

Maintenance during iddah

At the time of divorce, the wife has the right to receive maintenance for the period of
iddah. Syariah court will normally order for the payment of maintenance for the husband
to pay the wife throughout the iddah period. If the husband disobeys and does not pay or
the wife is not satisfies with the amount give, the wife can apply an order to the court.
The right of the divorced wife to receive maintenance will be terminated if she is nusyuz.
Explained in the Surah At-Talaq verse 65:6 “House them (the divorced women during
their waiting-period in a part of the house) where you dwell and provide for them,
according to your means; and do not harass them so as to straiten conditions for them
(thus forcing them to leave)…”

As stated under S.65(1) of IFLA, the right of a divorced wife to receive maintenance
from her former husband under any order of Court shall cease on the expiry of the period
of ‘iddah or on the wife being nusyuz.

In the case of Zahrah v Saidon, the divorced wife claimed for the maintenance during the
period of iddah. Her claimed was successful.
In the case of Zainuddin v Anita, the maintenance and accommodation should be given to
a woman who is divorced with a revocable divorce which means the husband can take
back the wife.
In the case of Piah v Che Lah, the divorced wife claimed for iddah maintenance. After
there was clear evidence, it was discovered the wife was guilty of nusyuz. The Kadhi
dismissed her claimed.

Residence
Right of accommodation or a place to stay of a divorced wife is protected by the Islamic
law. Divorced wifes has the right to stay in the house where she used to reside when the
marriage continued until or unless the husband proved other proper accommodation for
her. If the iddah period ended and the wife did not claim the right to accommodation, thus
her right will end.

Surah At-Talaq 65:1

“O Prophet! When you divorce women divorce them at their prescribed periods and count
accurately the prescribed periods and fear Allah your Lord. And turn them not out of their
houses nor shal themselves leave except in case they are guilty of some open lewdness”

As stated under S.71(1) of IFLA provided that a divorced woman has right to stay in the
home where she used to live during the time when she was married, for so long as the
husband is not able to get other proper place for her to stay.
(2) The right to accommodation will end:
(a) if the period of ‘iddah has finished; or
(b) the duration of guardianship of the children has lapsed
(c) if woman is married to another
(d) if the woman has been guilty of open lewdness (fahisyah),

In the case of Noor Bee v Ahmad Sanusi, the wife has rights to accommodation during
the iddah period.

MUTA’AH
Muta’ah or consolatory gift is a gift which is provided by Islamic law to be paid where
the wife is divorced without a just cause or where a divorce has not been caused by any
defect on her part or by an application of fasakh for a defect or fault by the husband.
It is payable not only in the case of talaq by husband but also in the case of khulu’.
Reason:
 In case of wife being divorce before consummation and mahr was not prescribed
during aqad, mutah is given to replace mahr
 To console the wife and to remove any cause for accusation or shame which may
arise from the divorce.
 To reduce hardship and pain caused to the wife upon divorce especially due to
unwanted talaq.
 To enable the wife to face the difficulties caused by the separation from the husband
on whom she had depended for maintenance.
 To reduce sorrow, loneliness, hatred and sadness of the wife because of the divorce
 To compensate and recognise the benefits obtained by the husband from the attention
and love given by the wife during the marriage

Without just cause

In the case of Nor Bee v Ahmad Sanusi, the husband was told to be liable for the divorce
while the wife has shown her love and willingness to serve her husband.
In the case of Ida Hidayati v Ahmad Sukri, the divorce happened due to the husband
having an affair with third party.
In the case of Hasnah v Othman, divorce occurred without any reasonable grounds after
29 years of marriage and 10 children.

Amount of Mut’ah

The quantity of muta’ah is based on the agreement of both parties. If there is no

agreement that can be decided, thus the court will decide for the parties.In deciding the
amount of muta’ah, the Court will consider the financial stability of the parties whether
they are rich or poor and also the position and circumstances of the wife and the status of
the family.

In Surah Al-Baqarah 2:236 explained

“There is no blame on you if you divorce women before consummation or before
fixation of their dower; but bestow on them (a suitable gift), the wealthy according to his
means, the poor according to his means, a gift of reasonable amount is due from those
who wish to do the right thing”
Surah 33:49
O ye who believe! When you marry believing woman and then divorce them before you
have touched them, no period of iddah have yet to count in respect of them, so give them
a present and set them free in a handsome manner.
Surah 2:241
For divorced women, mutaah shall be provided on a reasonable scale. This is a duty on
the righteous.

As stated under S.56 Islamic IFLA, a woman who is divorced without any valid reason
by her husband can apply to the Court for mut’ah, and the Court may, after hearing the
parties and upon being satisfied that the woman has been divorced without just cause,
order the husband to pay such sum as may be fair and just according to Hukum Syarak.

In the case of Piah v Che Lah, the husband and wife was married for 43 years and it was
alleged the wife was nusyuz but the wife was still receiving muta'ah payment of RM500.
In the case of Jaliah v Abu Bakar, the wife has the right to the payment of muta'ah. In the
case of Nor Bee v Ahmad Sanusi, the wife received RM200 as the muta'ah payment by
the husbnad. It was held that payment of muta'ah was set at RM1,500 and the husband
had to pay the balance.

In the case of Rohaniah v Hj Ujang, where there is an issue to decide on the amount of
muta'ah based on the position of the parties including financial position of husband and
position of wife. In the case of Tengku Anun Zaharah v Dato Dr Hussien, the court
ordered RM25000 to be paid to the wife as mutaah by looking at the position of the wife
who came from a royal family. In the case of Ramzas Daud v Ghani bin Idris
the factors of a wife of getting the right of payment muta'ah is having a good character,
fulfilment of her responsibility and obeying her husband.

In the case of Norhayati Mamat v A Rahman Ismail, the husband was considered as a
successful businessman and the wife was a housewife. Court ordered husband to pay
RM21,000 as mut’ah.

The situations where the wife is not entitled to receive mut’ah payment is fasakh where
both parties separated due to the wife such as the wife convert her religion, incapablility
of having sexual intercourse, not of sound mind, having contagious disease like
HIV/AIDS
In the case of Ahmad Shah v Norhayati Yusoff explained where situations like apostasy
or where she initiates fasakh due to husband’s defect eg. Insanity, impotency, poverty.
Where the husband applies fasakh due to a defect on the part of the wife such as muscle
or bone growth on private part

Harta Sepencarian

Harta sepencarian is based on Malay custom. The definition of Harta Sepencarian is

stated under S.2 of IFLA which means property that is jointly acquired by both the
husband and wife during the continuance of their marriage according to Hukum Syarak.

An-Nisa: 32- Do not covet what Allah has bestowed with it some of you over others. For
men is a share ofwhat they earned, and for women is a share of what they earned

*S.122, IFLA - Power of Court to order division of harta sepencarian

(2)In exercising the powers conferred by subsection (1), the Court shall have regard to—
(a) the extent of the contributions made by each party in money, property, or labour
towards the acquiring of the assets;
(b) any debts owing by either party that were contracted for their joint benefit; and
(c) the need of the minor children of the marriage, if any, and, subject to those
considerations, the Court shall incline towards equality of division.

(3)The Court shall have power, when permitting the pronouncement of talaq or when
making an order of divorce, to order the division between the parties of any assets
acquired during the marriage by the sole efforts of one party to the marriage or the sale
of any such assets and the division between the parties of the proceeds of sale.

*(3) In exercising the powers conferred by subsection (3), the Court shall have regard to
—
(a) the extent of the contributions made by the party who did not acquire the assets to the
welfare of the family by looking after the home or caring for the family; and
(b) the need of the minor children of the marriage, if any,
and, subject to those considerations, the Court may divide the assets or the proceeds of
sale in such proportions as the Court deems reasonable, but, in any case, the party by
whose efforts the assets were acquired shall receive a greater proportion.*

There is two types of harta sepencarian which is the joint effort properties and the sole
effort properties.

Joint Effort is stated under S.122(1) of IFLA provided the court can order division of
assets acquired during the continuance of the marriage by joint effort during talaq or
order of divorce. Under S.122(2) of IFLA, in exercising as stated under S.122(1), the
court will regards to (1) the contribution made by each party in money, labour and
property, (2) the debt owed for joint benefit, and (3) the need of minor children.

Sole Effort is stated under S.122(3) of IFLA provided the court can order division of
assets obtained during marriage made by sole efforts of a party. S.122(4) the court will
take into consideration in (1) of the contribution to welfare of family and home, and (2)
the need of minor children, if there is any children. Under S.122(5) of IFLA, assets
obtained during marriage by joint or sole efforts’ will include assets owned by 1 party but
later was improved by another party during the continuance of the marriage.

1/3 shares.
 In the case of Boto v Jaafar, it was held the wife has the right to the 1/3 shares of the
house and other fishing properties because the wife's contribution is an indirect form
by being his partner in his business and was accountable for his state of mental and
emotional calmness which allowed the husband to work effectively as businessman.
The wife gave up her job and was always there with her husband for his business
trips. Moral support is also regarded as a contribution. In the case of Ramah v Laton,
it was held that any property obtained at the time of marriage out of joint effort is
regarded as harta sepencarian. In Perak, a woman gets a share of 1/3 while the other
states are 1/2. Thus the wife was entitle to1/2 of shares as harta sepencarian
Aisha Bee v Mohamed Nor, the court dismissed the wife’s claim for harta sepencarian
because the division of properties between them has been agreed upon divorce

In the case of Rokiah v Mohd Idris, it was held the woman is qualified to Harta
Sepencarian because of the wife's indirect support in caring for the family, the husband
and children over the 35-years of marriage was the contribution. It was then ordered to
give wife 1/3 share. In the case of Wan Junaidah v Latif, after divorce took place, the
plaintiff applied for a share of harta sepencarian being half of the proceed of sale of land.
It was held the plaintiff was entitled to the harta sepencarian

Timah Sulaiman v Abd Rahman Ayob, held, EPF was an estate and not HS.

 Roberts v Umi Kalthum's stated that both of the parties bought a house which the
price was RM50,000. The husband paid RM40,000 while the wife paid for the
balance of the house. It was registered under his wife’s name because the husband
was a government employee. Later they got divorced and the husband claimed for
the house to be divided equally. It was held the property was jointly acquired and
both of them agreed to divide equally.

 In the case of Tengku Anun Zaharah v Dato Dr Hussein, the husband claimed the
wife is not entitled to Harta Sepencarian because she did not contribute in terms of
money and efforts. However it was held the wife is entitled to harta sepencarian as
she has contributed moral supports to the husband. The wife came from a royal
family and being accepted into the wife’s family and receive the honour of Dato’, the
husband’s business was expanding and he became a successful entrepreneur.

Improvement of the property.

The divorced wife claimed a piece of real estate on her home in Selangor. A wealthy
widow whose husband died, leaving behing farms and lands. In their marriage's life-
sharing, the husband had purchased a lot of property and orchards under his name, the
wife claimed that she had contibuted some money to buy a piece of land and made it a
home land and in addition, she had spent most of their household expenses.
Since there was clear evidence of the wife’s financial contribution in purchasing a piece
of land as well as working on it, her claim for half share of Harta Sepencarian was
allowed by the Court.
In the case Daud Anderson v Norabi, it was held the property obtained before marriage is
consider as division of harta sepencarian. It is important to prove that the party who did
not obtain the property made an effort and improvement on her own or by their joint
efforts.

Division of Harta Sepencarian in Cases of Polygamy

As stated under S.23(9) of IFLA
Every Court that grants the permission or orders a marriage to
be registered under this section shall have the power on the
application by any party to the marriage—
(a) to require a person to pay maintenance to his existing wife
or wives; or
(b) to order the division between the parties of the marriage of
any assets acquired by them during the marriage by their
joint efforts or the sale of any such assets and the division
of the proceeds of the sale.

 This provision intends to protect and safeguard the interest of the existing wife/wives
before husband marry another wife. This to avoid the husband from transferring the
his property to the new wife only as harta sepencarian, which will cause injustice to
the existing wife who have contributed directly or indirectly to the acquisition of
property throughout the marriage.
 Rosmaliza Ismail v Muhammad Zarin: Upon granting the husband’s application for a
polygamous marriage, the court also granted the wife’s application to divide harta
sepencarian of the property registered under the husband’s name.