Division of Joint Property According to Islamic Law and the Marriage Law

Abstract

Islamic law obliges the husband to provide for his wife and children, while the wife's duty is to manage the household. According to Islamic law, the wife is expected to spend most of her time at home serving her husband and educating the children, with all family necessities being the responsibility of the husband. The wealth earned by the husband is his own, and similarly, the wealth of the wife belongs solely to her; each manages and controls their property independently. Upon marriage, both husband and wife bring assets acquired before the union. These assets may increase through business ventures, gifts, or inheritance, or decrease due to losses, donations, or other reasons. In classical Islamic law, these assets remain individually owned, and the concept of joint property is not recognized.However, with modern developments, many wives who traditionally only managed the household now also work outside the home, sometimes carrying heavier responsibilities than their husbands in earning income, in addition to fulfilling their primary duties as homemakers. Consequently, wealth generated by the wife often merges with that of the husband, giving rise to the notion of joint property. Another perspective holds that even if the wife does not earn externally but manages the household, the husband's income is considered the result of joint effort (syirkah), making it jointly owned. In this context, the wife contributes indirectly by supporting her husband and managing household affairs, which facilitates his ability to earn.Therefore, wealth acquired after marriage is regarded not solely as the husband’s property but as joint property, or harta gono-gini. In the event of divorce or the death of one spouse, this joint property is divided equally between the surviving spouse and the other party, as stipulated in Article 37 of Law No. 1 of 1974 concerning Marriage and Article 96 of the Compilation of Islamic Law (KHI). Classical Islamic law does not regulate the division of such joint property; however, contemporary Islamic law, through the KHI, and positive law, through Law No. 1 of 1974, do provide such regulations. Some scholars analogize joint property to a syirkah, to be divided equally upon divorce or death, while others propose division according to urf (custom) and maslahah (considerations of benefit and welfare).