WEALTH IN ISLAMIC MARRIAGE Yeni Salma Barlinti

DEFINITION Wealth in marriage or syirkah is the wealth obtained by each or together, wife and husband, during their marriage, named by common property, without questioning regsiterred/certified name (Art. 1 KHI) The wealth which obtained during marriage becomes common property (Art. 35 Prgp. (1) Law of Marriage)

Kinds of Wealth Based on The Origin of Wealth Dowry (Harta bawaan) is the wealth possessed before marriage  Personal Property Respective Wealth (Harta masing-masing) is the wealth obtained during marriage, but it is not derive from their effort (business)  Personal Property Earned Wealth (Harta pencaharian) is the wealth obtained from effort of each or together during marriage  Common Property

Common Property or Syirkah in Sharia Principally, the wealth of wife and husband is separated An Nisa verse 32 لِلرِّجَالِ نَصِيْبٌ مِّمَّا اكْتَسَبُوا وَلِلنِّسَآءِ نَصِيْبٌ مِّمَّا اكْتَسَبْنَ “to men is allotted what they earn, and to women what they earn: But ask God” But there is possibility to be common property

Ways of Syirkah Agreement Based on agreement between wife and husband toward the origin of wealth Law Determined that earned wealth shall become common property Reality of marriage life: Syirkah abdaan is merging of property due to services or working Each has responsibility to do their jobs well in marriage Limited to earned wealth

Agreement (Art. 47-52 KHI) Merging of personal property Separation of earned wealth Each has authority to guarantee their personal property and common property

Merging of Personal Property Merging of personal property is including all kinds of property, dowry and respective wealth It might be limited on dowry, exclude respective wealth which obtained during marriage  or vice versa

Separation of Earned Wealth (Art. 48 KHI) The existing of separation of earned wealth agreement is not deleting the responsibility of husband to maintain for his family needs If there is clause in the agreement deleting the responsibility of maintenance from husband to his family, it will be considered that the husband’s responsibility of maintenance is still exist

Validity of Marriage Agreement The agreement is effective on the date of marriage in front of marriage registrar official Binding to each parties (wife and husband) and the third party

Common Property in Polygamy (Pasal 94 KHI) Common property in polygamy is separated for each wife The ownership of property is started from the first, second, third, and or fourth marriage happened

Distribution of Common Property in Dissolution of Marriage Dissolution due to divorce, each has right a half of all common property if there is no clause in marriage agreement (Art. 97 KHI) Dissolution due to one’s death, a half of common property belongs to another who live longer (Art. 96 KHI) For deceased person/prepositus who has more than one wife, each wife has right of common property (Art. 190 KHI)

YURISPRUDENSI Verdict No. 266K/AG/2010 concerning Common Property Consideration of Judges: “Based on the evidence and the facts in trial, it is proven that husband didn’t maintain for his family from his income and all common property is obtained by his wife. For the sake of justice, the plaintiff (wife) worths to get common property in the amount of which decided on this verdict.” Decision: “Decides that the Plaintiff (wife) has right ¾ of common property and the Defendant (husband) has right ¼ of common property.”

Cont’d Legal Norm: Wife received ¾ of common property because it was obtained by wife, and husband did not give maintenance for his wife and children for 11 years/during marriage

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