Joint Property after Divorce in the Polygamous Marriage in Indonesia and Malaysia: A Comparatif Study

This study analyses the concept and law formulation of the joint property after divorce in a polygamous marriage in Indonesia and Malaysia. A problem that often arises is when the first, second, third and fourth wives live under their husband’s support for their lives so that all their property or asset that has been collected will become joint property. However, when one of the wives divorces her husband, the distribution of joint property will become a problem. Hence, this study uses a normative juridical approach to solve the joint property problem in a polygamous marriage by collecting secondary, primary and tertiary legal materials. The concept of marriage in Indonesia is regulated based on article 35, paragraph 1, Indonesia Law Number 16 of 1974, marriage law number 16 of 2019 and instruction of President number 1 of 1991. While in Malaysia, this concept is regulated based on the Islamic Family Law Enactment, section 122:2 and the Fatwa authority of the National Council for Malaysian Islamic Religious Affairs (MKI). Specifically, the regulation about joint property in Indonesia is regulated in article 94 in the Islamic Law Compilation and Malaysia in MKI 2003, section 122:2. In these regulations, Indonesia and Malaysia have similarities in regulating joint property after divorce that we can understand that rules in Indonesia and Malaysia come from the same source, i.e., Al-Qur’an and Hadith. However, we found deficiencies that must be corrected to reinforce and explain legal certainty.