KUALA LUMPUR: Very few Muslim women know that they are entitled to claim harta sepen carian which can amount to half of their husband’s assets upon the latter’s death.
It is common for women to stake a claim for harta sepencarian (joint assets accrued during the marriage) in divorce but not in death, said AmanahRaya Legacy Services CEO Rafie Omar.
“This is because Muslim widows do not know their rights and entitlement. They think that if they have children, they are entitled only to one-eighth of the husband’s assets (under the faraid system) and if they have no children, they think they can get only a quarter of the husband’s assets.
“But women in Malaysia contribute to the success of their husbands, so the women should claim and are entitled to a portion of the harta sepencarian if they can show they contributed,” said Rafie in an interview.
He said this was on top of the faraid (Islamic inheritance law and distribution of estate) portion the wife would get.
Hence the difference between Case 1 and Case 2. In the first case, Zainab knew that as a wife, she could claim up to 50% of her spouse’s assets under harta sepencarian. So she received RM500,000 from her share of harta sepencarian and another RM62,500 as her faraid share (which is one-eighth of the remaining RM500,000).
Kamariah, on the other hand, was not aware of harta sepencarian and made no claim for it. As a result she received only RM125,000 which is one-eighth of RM1mil.
(In both cases, the rest of the money and assets were divided among the children with the boys getting twice the share of their sisters).
Under the faraid system, a wife with children would get one-eighth of her husband’s assets and she is entitled to a quarter of her husband’s assets if they have no children.
“If I die leaving RM100,000 in assets and my widow can show that she contributed to the sum, she is entitled to half of it and will get RM 50,000 first. Then from the remaining RM50,000, she will get her one-quarter share (if the couple has no kids) or one-eighth (with kids),” he said.
Rafie said even if the woman was a housewife who stayed home and looked after the kids, she could still claim for harta sepencarian.
“She can say that having a good wife at home made his life comfortable and easy for him to earn a living. If she can prove this in court, depending on the judge and evidence given, she is likely to be apportioned 30% to 50% of the harta sepencarian,” he added.
When such a claim is pending in court, Amanahraya (Malaysia’s premier trustee company) would suspend the faraid distribution until the matter is settled“We will pay the harta sepencarian entitlement first. And then distribute the balance under the faraid,” said Rafie.
Under the faraid system, if a wife has no children and no male relative, she gets a quarter of her husband’s assets and the remaining three quarters go to Baitul Mal (the treasury under the states’ Islamic councils), which is why it is important for her to claim the assets under harta sepencarian.
If the wife can prove to Baitul Mal that she was the one who paid for everything, it may even renounce its right to the assets.
On polygamous marriages, the wives should also know their rights to theharta sepencarian.
Citing an example, Rafie said that Mr A married Madam B for 20 years and acquired RM10,000 during their marriage. Then took a second wife, a Madam C, who is the daughter of a rich man. His business thrived because of her contacts and he subsequently acquired RM10mil. Later, he married Madam D and did not acquire much during his marriage with the third woman.
Would all his three wives be entitled to equal share after his death?
“If he leaves behind RM10mil upon death, it is not fair to his second wife if the wife’s portion of one-eighth under faraid is to be divided equally among the three wives (with each getting a 1/24 share). Because it was during his second marriage that he made his money. “So, his second wife should claim under the harta sepencarian that it was during his marriage to her that he became richer. She has to prove that it was the second marriage that made him richer and not the first or third. If she does that, she can walk away with up to 50% of his assets,” said Rafie.
Case 1: Zai nab’s husband Ismail dies and leaves behind assets comprising savings, EPF and a link house worth a total of about RM1mil. They have two boys and two girls. She receives RM562,500 as her share from the assets.
Case 2: Kamariah is married to Sabri who leaves behind assets worth about RM1mil when he dies. However, she is apportioned only RM125,000. She too has two boys and two girls.
I believe the intention of this law is to prevent the man from violating their rights at the expense of ladies or his wife, therefore I'm fully support this law as would give a husband to think twice before decide to marry a second wife or divorce.