Malaysia Customary Laws – Peninsula Malaysia

ADAT / CUSTOMARY LAWS

A.  PENINSULA MALAYSIA
Custom can be regarded as an ancient rule of law for a particular place or locality.  Historically, custom can be considered as constituting a set of unwritten laws or rules that has never been enacted by the legislative authority or promulgated as in the case of present-day legislation.   In fact, the original term used for Malay Customary Law is Adat.

 

Adat Pepatih – confined to the state of Negeri Sembilan in West Malaysia, and its substantive provisions are primarily on land-holding including inheritance.  Based on matrilineal, Adat Pepatih can be distinguished from the rest of the Malay customary law by traditions contained in customary sayings which have been handed down from generation to generation.  The inherited property is divided into two categories:

Ancestral property (i.e. property belonging to the tribe, consisting of land, paddy field and orchard).  All ancestral property is vested in the female members of the tribe who hold the property in trust for the tribe.  It cannot be disposed of by any Will and can only by inherited by female tribe members in equal shares, while the men have no claim to it.    Customary land can only be owned by female members of the tribe.   According to Adat Pepatih, a man is a member of his mother’s tribe until he marries and is accepted into his wife’s tribe.   He is the salaried worker in the tribal system.  The descent line and lineage membership passes through the women.
Acquired property (includes property existing at the time of marriage and which can be divided into 3 categories:

(i) Harta sepencarian property acquired jointly by the parties during their marriage.
(ii) Harta pembawa property belonging to the husband before marriage.
(iii) Harta dapatan property owned by the wife at the time of the marriage.
Property in possession of wife before marriage – Shall go to her customary heirs upon her death.
Property brought by the husband into the marriage – Will revert to his customary heirs upon his death
Property acquired during marriage –
No issue resulting from marriage – Property will devolve on the wife upon the husband’s death, and vise versa.
Children in the marriage – Property will pass onto the surviving spouse and children.
Adat Temenggong – based on patrilineal principles of customary law, and fundamentally based on Islamic principles, or Hukum Syara.  The distribution of the deceased’s estate is set out on the following provisions:

(a) A daughter is entitled to one half of the entitlement of the son (e.g. if the son is entitled to a half share, the daughter will only be entitled to a quarter share).
(b) If there is no son, a daughter is entitled to half of the deceased’s estate.
(c) If the deceased has two daughters and no son, the daughters will be entitled to two-thirds of the estate in equal share.
(d) The wife or wives of the deceased will be entitled to one quarter of the deceased’s estate if there are no children in the marriage.  If there are children, the wife or wives will be eligible to only one-eighth of the estate.
(e) A husband is entitled to half of the wife’s estate if there are no children.  If there are children, the husband is entitled to a quarter of the estate.
(f) The father or mother of the deceased who died leaving children is entitled to one-sixth each of the deceased’s estate.
The above principles and other conditions contained in the Hukum Syara have been applied by the society practising the Adat Temenggong in most of the Malay states, except in Negeri Sembilan where Adat Pepatih applies.
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