Marital Property in California and Indonesia: Community Property and Harta Bersama

One of the more notable features of Indonesian Islamic law is its recognition of the concept of jointly owned marital property. The Indonesian doctrine of joint marital property bears a striking similarity to the community property system in California. In both systems the marital estate consists of property acquired during the marriage through the efforts of either of the spouses. Both systems distinguish marital property from separate property and both define separate property as all property owned by either spouse prior to the marriage or acquired by gift or inheritance afterwards. Apart from their doctrinal similarity, Indonesian Islamic marital property and California community property are alike in another respect: Both are transplanted elements existing in foreign legal environments. Indonesian marital property is an indigenous Southeast Asian practice in an Islamic conceptual structure, while community property is a continental civil law institution in an Anglo-American common law system. In both cases, moreover, the conception of marriage that underlies the doctrine of joint marital property is out of harmony with the understanding of marriage reflected in the system\u27s treatment of marriage generally. This Article compares the process of incorporation of joint marital property in Indonesia and California. The results of this comparison contradict the assumption that sacred legal systems are inherently less capable of change and adaptation than secular systems. Focusing first on California, it is shown that a fully egalitarian system of joint marital property did not emerge until the 1970s, more than 100 years after the civil law doctrine of community property was formally adopted in the state constitution in 1849. In Indonesia, by contrast, the indigenous customary concept of marital property encountered relatively little resistance from Islamic authorities. By analogizing household economic production to a commercial partnership, Islamic jurists were able to embrace joint marital property by recasting the doctrine as an Islamic institution

Mediation In Settlement of Joint Marital Property Disputes: Study At Tanjung Karang Religious Court, Lampung

In general, after a divorce, there are frequent disputes relating to joint marital property.   The settlement of joint marital property disputes can be carried out through a mediation process applied through litigation (court) and non-litigation (outside court). The settlement of joint marital property disputes is one of the absolute jurisdictions of Religious Courts. The number of joint marital property cases successfully mediated in Religious Courts throughout Indonesia in 2018 was 6.2%, in 2019 was 5,5%. This paper describes the factors that cause unsuccessful mediation in settling disputes over joint marital properties at Tanjung Karang Religious Court, Lampung. This empirical study with qualitative analysis and a normative juridical approach interviews mediator judges, disputants, and advocates. The research results show that the implementation of the mediation process in settlements of joint marital property disputes at Tanjung Karang Religious Court in the last four years is 15.1%, which is in the low category. Factors that influence the unsuccessfulness of mediation in joint marital property disputes at Tanjung Karang Religious Court are the absence of the parties, the disputed object, and the intervention of third parties (family, friends, and lawyers)

Marital Property Rights in Transition

Marital property rights, a term that covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse, are in a state of transition. To discuss the themes and trends that are emerging, this Article is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that much concerns high-powered estate planners because intestate estates are usually fairly small. But to the surviving spouse, the intestate share can mark the difference between economic security and poverty. The third segment addresses the rights of spouses upon divorce and disinheritance at death. The fourth and final segment surveys some recent developments and offers a legislative proposal regarding the rights of persons who are not spouses at all, but near-spouses

Early Washington Marital Property Statutes

Twenty years prior to statehood, the legislature of the Territory of Washington adopted the Community Property System. For nearly seventy years the courts have struggled with its provisions. Although the original act was copied largely from a statute adopted in California in 1850, such changes have been made, that the system in Washington may be regarded as unique. The adoption of the system in its present form was not accomplished by one stroke of the pen. Rather, it has had a checkered career. The original statute passed in 1869 was followed by a marital partnership property act approved November 29, 1871, which in turn was repealed effective November 5, 1873. Nine days later, an act substantially the same as the statute of 1869, was approved. This was modified in 1879. Slight amendments designed to clarify the system followed in later years. For approximately seventeen years, and since the organization of the Territory in 1853 the common law had been followed in governing the property interests of married persons. Dower and courtesy were recognized from the first, even provided for as late as the statutes of 1869, and were not abolished until 1871

Marital Property Rights in Transition

The subject of marital property rights is very timely because those rights are in a state of transition. The term marital property rights covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that high-powered estate planners get involved in very much because intestate estates are usually fairly small. But to the surviving spouse, the intestate share can mark the difference between economic security and poverty. The third segment addresses the rights of spouses upon divorce and disinheritance at death. The fourth and final segment surveys some recent developments regarding the rights of persons who are not spouses at all, but near-spouses

Marital Property Rights in Transition

The subject of marital property rights is very timely because those rights are in a state of transition. The term marital property rights covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that high-powered estate planners get involved in very much because intestate estates are usually fairly small. But to the surviving spouse, the intestate share can mark the difference between economic security and poverty. The third segment addresses the rights of spouses upon divorce and disinheritance at death. The fourth and final segment surveys some recent developments regarding the rights of persons who are not spouses at all, but near-spouses

Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya\u27s Marital Asset Division

Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, it provides that monetary contribution and non-monetary contribution are the only factors for dividing marital property on divorce. The Kenyan courts have issued contradictory decisions on the weight of nonmonetary contribution in long-term and short-term marriages. Without guidance on the weight of non-monetary contribution during divorce proceedings, the courts have left potential litigants, especially women, to navigate the unsettled waters of marital disputes in the legal system. Kenya’s Parliament should take steps to clarify the legislation, develop regulations on the weight of non-monetary contribution, and provide statutory factors for consideration during division of marital property. This will ensure that courts meet the overriding objective of achieving a fair outcome in marital property disputes. Because of the constitutional guarantee of equality, the courts must begin analysis of property division by assuming each spouse is entitled to half of the marital property