Definition of matrimonial property or harta sepencarian

Matrimonial property is normally refers to any property which is acquired during the marriage either by the joint effort or the sole effort of the party. It also includes property which is owned before the marriage provided that it has been substantially improved by the other parties or by both parties during the marriage². Shankar J in the case of Ching Seng Woah v. Lim Shook Lin.³

“…the expressions refer to the matrimonial home and everything which is put into it by either spouse with the intention that their home and chattels should be a continuing resource for the spouses and their children to be used jointly and severally for the benefit of the family as a whole. It matters not in this context whether the asset is acquired solely by the one party or the other or by their joint efforts. Whilst the marriage subsists, these assets are matrimonial assets. Such assets could be capital assets. The earning power of each spouse is also an asset.”⁴

The above definition clearly indicates that matrimonial property should cover anything that is acquired during the marriage. The definition is wide enough so as to cover the earning power of the spouse even though the quantification of the amount may lead to another dispute. The above finding corresponds to the decision of Lord Denning in the case of Wachtel v. Wachtel⁵ where matrimonial assets should refer to those things, which are acquired by one or the other or both of the parties. This must be coupled with the intention that it should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole.

While for the Muslim, the definition section of the IFLA defines it as a “property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syara’⁶. The judges in the decided cases also give a definition of harta sepencarian which basically refers to any property acquired during the marriage in which both parties contributed to its acquisition. A clear example can be seen in the case of Yang Chik v Abdul Jamal⁷, where the the learned Kadhi said to the effect: “ the concept of harta sepencarian is of the property that is acquired during the marriage with both the husband and wife contributing by he joint efforts or money to acquire the property”.

Harta sepencarian in actual fact is not only confined to both their efforts in acquiring the property but extends further to cover their contribution whether formal or informal. This principle is best illustrated in the case Piah binti Said v Che Lah bin Awang⁸⁹ where the Kadhi Besar of Penang defined the term as :

“ Property acquired jointly during the subsistence of the marriage as result of joint efforts of the parties. This would arise in cases where the parties were either employed in similar occupations or otherwise and whether the contributions by the parties were formalized or not, and irrespective of whether there was a clear division of functions or otherwise.”⁹

From the above definition, it is clear that harta sepencarian is basically refers to any property which is acquired during the marriage, either by the joint effort or the sole effort of the parties as long as there is a contribution either directly or indirectly by the party who does not acquire the property.

The Employee Provident Fund

The Employee Provident Fund (hereinafter refers to as EPF) is one of the major financial institutions in our country. It is a compulsory scheme for all wage earners. The purpose of the scheme is to ensure that the employees are financially secure after their retirement. In other words the EPF has an important role to play in providing workers with some measure of financial protection after retirement¹⁰.

The question of whether the EPF benefit is recognized as a matrimonial property and liable for division has been raised quite a number of times¹¹. The court had a chance to deal with the issue in the case of Lim Kuen Kuen v. Hiew Kim Fook & Anor¹². The petitioner wife in this case claimed to the court that 50% of the EPF and gratuity payments due to the respondent be placed in a fixed deposit. Pursuant to this, she applied for an interlocutory injunction to restrain the respondent, his servants, or agents from disposing of his Employees Provident Fund (EPF) and gratuity payments until final disposal of her application for ancillary relief under the divorce petition. The judge decided that both the EPF and gratuity payments are matrimonial assets following the decision made by the Singapore Court¹³ in the case of Ong Chin Ngoh v. Lam Chin Kian¹⁴, and the case of Lam Chan Kian v Chin Ngoh¹⁵.