The Significance of Children’s Needs in the Division of Harta Sepencarian (Matrimonial Property) in Malaysian Syariah Courts

Abstract

In the context of claims for harta sepencarian (matrimonial property) division, the parties involved will seek to persuade the court of their entitlement to the harta sepencarian or to a larger share thereof. However, the specific needs of children under their care seldom receive the required attention during proceedings and judgments rendered by Shariah Courts when distributing harta sepencarian. This is because discussions about children's needs typically arise in custody-related cases rather than in harta sepencarian cases. Therefore, it's crucial to evaluate how judges consider children's needs when determining the division of harta sepencarian to ensure their welfare. This article aims to investigate the extent to which children’s needs are taken into consideration when deciding the division rate of harta sepencarian, a dimension notably marginalized in the majority of Shariah Court cases involving the division of harta sepencarian in Malaysia. This qualitative study used the content analysis design to descriptively analyse documents in order to explore implicit elements of children's needs that may impact court decisions when distributing harta sepencarian. The findings identified several key elements of children's needs that could influence court decisions related to asset division in harta sepencarian, including considerations related to housing, sustenance, childcare, and education, although these aspects are not explicitly emphasized in court proceedings by either the presiding judge or the litigants.