المالُ المشتركُ بين الزوجين والمطالبةُ به بين الفقهِ والفتوى والقضاء ماليزيا نموذجًا

Abstract

Islam guaranteed marital life with great security and care, surrounded it with great concern for the sake of preserving it and made one of its most important goals of affection and compassion that send reassurance and fruitful cooperation between the spouses, so that each of them helps the other in earnings and sources of livelihood. If the marital relationship between them broke down, each of them will sought to demand the other for his/her share of this joint fortune away from stipulated legal dues such as inheritance and alimony. The question is, what is the definition of this money? Does it exist in the old Islamic jurisprudence? What is the legitimacy of the claim of this money by one of the spouses or their heirs in these cases? And to what extent is the interest achieved or hardship avoided by him/her in obtaining what she/he is demanding? What is the attitude of the Malaysian Judiciary and its legal text on that issue? What is the stand of the official fatwa departments on this issue? What are the legal evidences on which these are based in determining whether it is due or rejected based on fatwa?  Are there other countries have adopted this system other than Malaysia?  This research is focusing on this contemporary issue, addressing it in the light of the laws of three countries, namely Malaysia, Morocco and Tunisia as the latter two have agreed on this principle and work in this system, and according to three trends in Malaysian society as the research such as: jurisprudence, fatwa dan judiciary.  This research proceeds with descriptive methodology in inference of terms of jurisprudence and analysis of position of Malaysian law with reference to the sources adopted in every jurisprudential art and commitment to scientific and technical controls adopted in scientific research.