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THE EPF MONEY: TO RECOGNISE OR NOT TO RECOGNISED IT AS A MATRIMONIAL PROPERTY OR HARTA SEPENCARIAN?
by Dr. Norliah Ibrahim [View Writer's Profile]
1.0 Introduction
Matrimonial property disputes are one area of law which is daily litigated before the registrars and judges. It is found that, more often than not, the claim on its division is invoked after a divorce. Some divorce is concluded smoothly but in some cases it turns to be the other way around. The parties will fight over practically everything of what has been accumulated throughout their marriage to be divided including the money in the Employees Provident Fund (EPF). Thus this article will discuss whether or not the EPF money is recognized as a matrimonial property by referring to the cases decided in the Civil as well as the Syariah Court.
1.1 Provisions on matrimonial Property
In Malaysia the non-Muslim marriages, divorces and matters incidental thereto are governed by the Law Reform (marriage and Divorce) Act 1976 (hereinafter referred to as the LRA) while for the Muslims they are governed by the Islamic Family Law Act and Enactments. However for the purpose of this article, as regards for the Muslims parties, reference in made only to the Islamic Family Law (Federal Territories) Ammendment Act 2005, which is also the model followed by other states in Malaysia.
1.1.1 Law Reform (Marriage and Divorce) Act 1976
Section 76 reads:
“(1) The court shall have power, when granting a decree of divorce or judicial separation to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties any proceeds of sale.
(2) In exercising the power conferred by sub-section (1) the court shall have regard to-
(a) the extent of contributions made by each party in money, property or work towards the acquiring the assets;
(b) any debts owing by either party which were contracted for their joint benefit; and
(c) the needs of the minor children (if any) of the marriage,
and subject to those considerations, the court shall incline towards equality of division.
(3) The court shall have power, when granting a decree of divorce or judicial separation to order the division between the parties of any assets acquired by them during the marriage by the sole efforts of one part to the marriage or the sale of any such assets and the division between the parties any proceeds of sale.
(4) In exercising the power conferred by sub-section (1) the court shall have regard to-
(a) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring the family;
(b) the needs of the minor children, if any, of the marriage;
and subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the courts think reasonable ; but in any case the party by whose effort the assets were acquired will get a greater proportion.
(5) For the purpose of this section, references to assets acquired during marriage include assets owned before the marriage by one party, which have been substantially improved during the marriage by the other party or by their joint efforts.”
While for the Muslims parties, The IFLA actually provides identical provisions except for the words “matrimonial property” being substituted by “harta sepencarian” while divorce and judicial separation” are replaced with the words “talaq and when making the order of divorce”.
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