Muslim Marital Property

Note: The information is mostly drawn from two publications which are based on research by local legal experts and activists in the Muslim community: Knowing Our Rights: Women, family, laws and customs in the Muslim world, and Home Truths: A Global Report on Equality in the Muslim Family.

Giving Wives a Fair Share of Marital Property

Marital property means the goods and property that the couple acquired (whether purchased by one or other spouse) during the marriage, and any improvements made to the spouses’ separate property that was done through joint efforts during the marriage. The laws in many Muslim-majority and minority countries often allow a couple to negotiate in the marriage contract how this property is to be controlled during the marriage or divided upon divorce. This is called deciding a ‘property regime’. There are different types of arrangements, and a couple should choose one that suits their circumstances.

Fortunately, Muslim laws in many countries permit this kind of negotiation. For example, Morocco’s new Moudawana requires the two officials attending the marriage to inform the parties of provisions permitting the specification of a property regime. This is designed to address women’s ignorance of the possibility of negotiating a property regime.

The following are some extracts from the above book about the laws in different Muslim countries regarding property in marriage.

Getting a Fair Share: Muslim Women in Singapore

In addition to idda maintenance, mata’a (compensation for a divorced wife – see Holy Qur’an 2:241) and the recovery of mahr, women married under Muslim laws in Singapore are frequently able to recover a substantial share of matrimonial assets, even when they have not contributed to the family’s income through paid employment.

Following amendments to the Administration of Muslim Law Act 1966 (no. 27/66) in 1999, the definition of matrimonial assets was clarified and the factors that the courts could take into account while deciding the division of these assets was also elaborated.
With the 1999 Amendments, the factors that are to be taken into account are (Section 52(8)(a) ADMLA):

(a) The extent of contribution made by each party in money, property or work towards acquiring, improving or maintaining the property.
(b) Any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage.
(c) The needs of the children, if any.
(d) The extent of contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependent of either party.
(e) Any agreement between the parties with respect to the ownership and division of the property made in contemplation of divorce.
(f) Any period of rent free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party.
(g) The giving of assistance or support by one party to the other party (whether or not of a material kind) including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business.
(h) The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future.
(i) The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future.
(j) The standard of living enjoyed by the family before the breakdown of the marriage.
(k) The age of each party and the duration of the marriage.
(l) Any physical or mental disability of either of the parties, the value to either of the parties of any benefit (such as a pension) which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring.

The 1999 Amendment defines matrimonial assets as (Section 52(14) ADMLA):

(a) Any asset acquired before the marriage by one party or both parties to the marriage which had been substantially improved during the marriage by the other party or by both parties to the marriage.
(b) Any asset of any nature acquired during the marriage by one party or both parties to the marriage.

However, this does not include any asset (not being the matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.

Other countries

Malaysia: Under Section 58 of the Islamic Family Law Act, following divorce the court has power to order the division of assets or the division of the proceeds of the sale of any assets acquired by joint effort of the parties during a marriage. Under Section 58(2), the court must incline toward an equitable division, taking into account: the extent of the contributions made by each party in money, labour, or property toward acquisition of the assets; debts incurred by either party for their joint benefit; and the needs of any minor children of the marriage. Under Section 58(3) and (4), assets acquired by the sole effort of one party to the marriage may also be divided, taking into account: the extent of the contribution to the welfare of the family made by the party who did not acquire the assets and the needs of any minor children of the family. However, the division must be reasonable, and the party by whose efforts assets were acquired must receive a greater proportion. Under Section 58(5) assets to be divided can include assets owned before the marriage by one party but which have been substantially improved during the marriage by either the other party or by the parties’ joint effort.

Iran: The standard marriage contract includes an optional clause stating that wealth accumulated during the marriage will be divided in half on divorce.

Philippines: Article 38 of the Code of Muslim Personal Law provides that in the absence of any other written agreement between the spouses (either made in the marriage contract or subsequently), the couple shall be governed by a complete separation of property regime. Under Article 41, each spouse retains whatever property they brought in to the marriage, all income from employment or trade, any money inherited during the marriage, any income from their personal property, and nuptial gifts; the wife retains her mahr. Under Article 43, each spouse also retains that household property which is customarily used by that spouse. Couples may choose a regime of absolute community of property, which would mean that on divorce all property brought into the marriage and acquired during the marriage is to be divided equally upon dissolution.

Morocco: Article 49 of the new Moudawana establishes a separate property regime as the norm but permits the spouses to make a written agreement on the investment and distribution of assets acquired during the marriage. Informing spouses of these provisions is part of the duties of the adouls (public notaries) present at the marriage. In the absence of such an agreement, recourse is made to general standards of evidence also taking into account the work of each spouse, the efforts made and the responsibilities assumed in the development of the family assets.

Turkey: Under Article 186-237 of the Civil Code, a couple has the option of choosing between three different property regimes upon marriage: separation of goods (each party owns the goods and property that are registered in his/her name prior to and throughout the course of the marriage), union of goods (all goods and property owned by each party prior to and during the marriage are considered joint property of the couple); aggregation of goods (through a prenuptial agreement both parties decide upon which goods will constitute the joint property of the couple). Under Article 170, where a couple has not specified a property regime applicable to their marriage union, they are automatically considered to have accepted the separation of goods property regime.