The concept of ‘Uruf and Maslahah as sources of reference : a study on matrimonial property in Malaysian Islamic legal system

Abstract EN

The matrimonial property (harta sepencarian) means the property acquired during the marriage of a husband and his wife as a result of their shared resources or efforts.

there is no explanation about this kind of property in the classical fiqh studies.

in practice, the property will be claimed by one of the spouses after the divorce, death, or the occurrence of second marriage.

this article aims to study this type of property based on Islamic jurisprudence and law in Malaysia.

based on analytical and comparative methods, the researcher analyzes its legal status, implementation in society, and relationship between this kind of property and other types of properties in Islamic law, such as: hibah, nafkah, dowry, wasiat, mut'ah and even inheritance.

results of the study showed that harta sepencarian is a practice in Malay society since long time ago.

it has been recognized by the Sariah court in Malaysia based on two sources of Islamic law ‘uruf and maslahah which referred to Qur'an and sunnah.

guided by this, Islam is known as a religion that cares about family affairs especially women by placing them in high regard, maintaining their dignity, and preserving such rights as the right harta sepencarian.