Malay customary law or adat law is a combination of Malay customs and Islamic law that governs behavior and social etiquette in Malay society. There are two main categories of Malay customary law: Adat Perpatih which follows a matrilineal system where ancestral land is inherited by daughters, and Adat Temenggung which follows a patrilineal system where sons inherit twice as much as daughters according to Islamic law. The application of adat law can be seen in matters of inheritance as well as distribution of matrimonial property during and after divorce. Courts have recognized customary law for Malays and applied it in cases regarding ancestral land rights and division of jointly acquired property.

1. 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

2. 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
Nelfi Amiera Mizan
Multimedia University