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Customary Law December 2009 Question 5

a) Malay Customary Law The customary laws followed by Malays are called adat or adats law. Adat indicate an unwritten code of behavior and social etiquette governing the Malay society. A study on adat will not only reflect its legal consequences but also the way of life and the identity of the Malays themselves. The position of adat in the Malay society can be seen from Malay proverb, biar mati anak, jangan mati adat. When Islam enters the Peninsular Malaya, some of the customs were infused with Islamic teaching; therefore, Malay customary law applicable now in Malaysia is a mixture of Malay customs and Islamic law. Malay Customary law can be further divided into two categories which are the Adat Perpatih and Adat Temenggung. In both, the application of the adats differs in some aspects. Maxwell R in Chulas v Kolson, allows the usage of customary law as it states that when English law is unsuited to the condition of the race, their own laws must be applied to them with some limitation. Adat perpatih which recognises matrilineal system inherits the customary land only to daughters as only female lineage have the right to inherit their family's ancestral land ('tanah pesaka'). This is because ancestral land is considered to belong to a clan, not to an individual, and female descendants of the clan are appointed as guardians of the land. As in the case of Munah v Isam it describes the position of ancestral land according to Adat Perpatih. In this case, a certain land was transferred outside of the Tiga Nenek clan. The court ordered for the said land to be returned to the rightful heiress, Isam, conditional upon payment of a sum of mone. On the other hand, adat temenggong which recognises patrilineal system inherits the property of deceased based on the Syariah law where the son is entitle to inherits in a ratio of 2:1 from daughter. The application of adat temenggong can be seen through the matter of distribution of property after divorce or called the matrimonial property which are Nelfi Amiera Mizan Multimedia University

divided into three kinds, namely harta pembawa, harta dapatan and harta sepencarian. Harta pembawa refers to inherited property brought by the husband to the marriage, which reverts to him on divorce. Harta dapatan is brought by the wife to the marriage which reverts to her on divorce and Harta sepencarian refers to property acquired jointly during the marriage. In Boto binti Taha v Jaafar Bin Muhamed, the wife claimed against the matrimonial property that her husband had purchased. When the husband divorces his wife, court decided movable properties such fishing boat can also be placed under the provisions of the matrimonial property even if she did not give financial contributions to the husband to buy the property, but his wife has many times accompanied her husband when he went fishing in the sea together. This is enough to count as a "contribution" in buying the property in the event of a dispute. Although the wife did not participate directly in the fish business for her husband, the presence of her husband caused the peace of mind that allowed it to manage the business effectively. Harta sepencarian also is applicable to all types of property jointly acquired as was judged in the case of Roberts v Ummi Kalthom. In the case husband is a soldier who converted to Islam were married Malay women and have bought property during the marriage and the name of the property under his wife's name. When they divorce, the husband has claimed the property as matrimonial property. The High Court ruled that the property was jointly acquired property, although at that time the plaintiff was not a Malay but English people who have converted to Islam.

b) Natives customary law

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