Topic 4: ANCILLARY ORDERS ON DIVORCE

• Valid divorce and annulment shall be registered under the Registrar of Divorces.
• Section 55: No pronouncement of Talaq or order of divorce or annulment shall be registered UNLESS the Chief
Registrar is satisfied that the court has made a final order for the custody of the maintenance of the dependent
children, for the maintenance and accommodation of the divorced wife and for the payment of Muta’ah to her.

(1) RIGHT TO MASKAHWIN (MAHR) OR PEMBERIAN

• The Maskahwin is payable on marriage, either during the solemnization of the marriage, or anytime during the
marriage. (obligatory marriage payment by the husband under Hukum Syara’).
• Form of payment:
i. money actually paid
ii. acknowledged as a debt with or without security
iii. something that is capable to be valued with money according to Hukum Syara’.
• If the husband has never paid the maskahwin to the wife, or the wife has never remitted the maskahwin until the
divorce takes place, such payment becomes due.
• In Malaysia, married women are entitled to Maskahwin and pemberian (payment of money or gifts).

1. Holy Quran
Surah An-Nisa (4): 4: “And give the women on marriage their dower as a free gift; but if they of their own good
pleasure remit any part of it to you, take it and enjoy it with right good cheer”.

2. IFLA 1984
Section 57: “Nothing in the act shall affect any right that a married woman may have under Hukum Syara’ to her
maskahwin and pemberian or any part thereof on the dissolution of her marriage”.

3. CASES LAW
Salma v. Mat Akhir
- The divorced wife claimed for maskahwin of RM600 which was still owing but the husband claimed that she had
remitted the payment.
- The wife called 2 witnesses (one was her father which was not accepted by the court) and took the oath as ordered
by court.
- The court accepted the evidence and ordered the husband to pay the maskahwin of RM600.
(2) RIGHT TO MAINTENANCE

If the husband does not make such payment, and if she is not satisfied with the amount awarded, the wife can apply
to the court for an order for maintenance.

1. Holy Quran
Surah Al- Talaq (65):6: “Let the woman live in Iddah in the same style as you live according to your means; annoy them
not so as to restict them. And if they carry life in their wombs then spend your substance on them until they deliver
their burden”.

2. IFLA 1984
Section 65 (1): The right of divorced wife to receive maintenance from her former husband under any order of court
shall cease on the expiry of the period of iddah or the wife being nusyuz. The right of a divorced wife to receive a
pemberian from her former husband under an agreement shall cease on her remarriage”.

3. CASE LAW
Noor Bee v Ahmad Shanusi
- The husband divorced the wife when he was with the army and it came to the knowledge of his wife subsequently.
- The wife was not satisfied with the RM300 iddah maintenance sent to her and appealed.
- There were evidences that the husband in that case was receiving a monthly salary of RM700 and the Qadhi ordered
him to pay the maintenance at the rate of RM6 a day for 87 days amounting to RM522.
- The husband was ordered to pay the balance of RM222 as he had paid RM300 earlier.
- The Qadhi in delivering his judgment also said that the maintenance for a wife does not lapse but if not claimed it
becomes a debt due from the husband to the wife.
- Other than that, the amount of maintenance depends on the standard of living of the parties whether they are rich,
poor or middle class. The usual standard for meals for a Malay is to have two heavy meals and two light meals. In
this case, the amount that is needed for an average family would not be less than RM6 a day.

Jaliah v Abu Bakar

- The Qadhi held that as the wife did not shown to be nusyuz, she was entitled to the maintenance during the period
of Iddah.

(3) RIGHT TO ACCOMODATION

1. Holy Quran
Surah At- Talaq (65):1: “O Prophet! When you divorce women divorce them at their prescribed periods and count
accurately the prescribed periods and fear Allah your Lord. And turn them not out of their house nor shall they
themselves leave except in case they are guilty of some open lewdness.

2. IFLA 1984
S. 71- A divorced wife is entitled to stay in the home where she used to live when she was married for as long as the
husband is not able to get other suitable accommodation for her.

3. CASE LAW
Noor Bee v. Ahmad Sanusi
- Kifayah al- Akhyar: If the period of Iddah or a portion of it has expired and the wife who has been divorced does not
claim accommodation, her right lapses and it is no longer an obligation on the husband to provide it.
(3) MUTA’AH (Consolatory Gift)
In addition to right of maintenance and accommodation, the wife who has been divorced without reasonable cause
may apply for muta’ah (consolatory gift).

1. Holy Quran
Surah Al-Baqarah (2):241: “For divorced women muta’ah should be provided on a reasonable scale. This is a duty on
the righteous.
Surah Al-Ahzab (33):49: “So give them a present and set them free in a handsome manner”.

2. IFLA 1984
S. 56- A woman who has been divorced without just cause by her husband may apply to the court for muta’ah or a
consolatory gift, and the court may, after hearing the parties and upon being satisfied that the woman has been
divorced without just cause, order the husband to pay such sum as may be fair and just according to Hukum Syara’

3. CASE LAW
Normaidiah v. Azhari
- The husband argued that he married the wife in order to avoid disciplinary action against him as he was suspected
on carrying on with her before the marriage and she could not carry out her duties as a wife.
- Reference made to Surah Al- Baqarah (2):241 and opinion of Shafiie that the payment of muta’ah is duty on the
husband who divorces his wife.
- Hence the argument by the argument was immaterial and the wife is entitled to muta’ah.

Piah v. Che Lah

- The wife left the house although she claimed that the husband was harshed towards her.
- In this case the Qadhi held that the wife was not entitled for Iddah maintenance as she was nusyuz, but he was
entitled to muta’ah.
(4) HARTA SEPENCARIAN
A claim for a share of jointly acquired property which arises under the Malay custom.

S.2 – Property jointly acquired by husband and wife during the subsistence of the marriage in accordance with the
condition stipulated by Hukum Syara’.

Boto v Jaafar
- The wife worked as a coffee shop assistant and the husband carried on a fishmonger business.
- The business of the husband prospered and during the marriage, he bought a matrimonial home, a piece of land,
four fishing boats and fish stall.
- On the divorce, the husband only paid the plaintiff her maintenance for the period of Iddah.
- The wife applied for a share of the jointly acquired property.
- Court: the fact that the wife accompanied the husband on his business trips and gave up her employment for the
marriage must amount to her joint efforts in acquiring the properties during the marriage, thus they are harta
sepencarian.
- The court ordered that the properties to be divided – 1/3 for the wife and 2/3 for the husband.

Haminah Bee v. Samsuddi

- The evidence showed that the wife had looked after the husband and the child of the husband from his former
marriage.
- The Qadhi held that the wife had looked after the household without any help of any servant provided by the
husband and therefore the property acquired during the marriage can be regarded as jointly acquired.

Tengku Anun Zaharah v Dato Dr Hussein

- The wife claimed a share in the harta sepencarian but the husband claimed that the properties were acquired by his
efforts.
- The Qadhi stated that although the wife did not contribute financially to the purchase of the properties, she did
contribute with the moral support and position which enabled the husband to receive the honour of Dato’.
- The husband therefore could not deny the contribution of the wife, and she deserves the share to safeguard her
future.
- The Qadhi ordered that a piece of land of 3 acres to be given to the wife.