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

Table of ContentsI. Introduction 1418II. California Community Property 1422III. Harta Bersama in Indonesia 1437A. Adatrecht: Custom as Law 1444B. The Islamic Concept of Marital Property 1448IV. Conclusion 1459I. IntroductionOne of the more notable features of Indonesian Islamic law is its recognition of the concept of jointly owned marital property. The development of the doctrine of Islamic marital property dates from at least the eighteenth century, and Indonesian Islamic tribunals have applied a doctrine of joint marital property for more than 100 years.] The doctrine is currently spelled out in both the National Marriage Law,2 which is applicable to Indonesians of all religions, and in the Compilation of Islamic Law3 (Compilation), a code of family, inheritance, and charitable foundation rules that has been formally designated as binding on the Islamic courts. The Compilation provides that marital property, referred to with both the Indonesian term "harta bersama" and the Arabic derived words "syirkah" or "syarikat," is all property that is acquired during the marriage either by the husband and wife individually, or through their joint efforts, regardless of who holds title to the property.4The doctrine of joint marital property as applied by Indonesian Islamic courts bears a striking similarity to community property laws that exist in California, Texas, and a small number of other U.S. jurisdictions.5 The basic features of U.S. community property and Indonesian Islamic marital property are identical. In both systems the marital estate consists of property acquired during the marriage through the efforts of either of the spouses.6 Both systems distinguish marital property from separate property belonging to the individual husband or wife, and both define separate property in the same way: Separate property consists of property owned by either spouse prior to the marriage or acquired during the marriage by either gift or inheritance.7The similarity between harta bersama and community property is entirely fortuitous. Property rights within marriage are not treated in standard works of Islamic jurisprudence, and the doctrine of joint marital property is not known in Islamic law outside of Southeast Asia.8 The Indonesian Islamic doctrine of joint marital property is derived from Southeast Asian custom or adat and was absorbed into Islam by analogy to Islamic principles of business partnership.9 The doctrine of community property as practiced in the United States has its source in continental European civil law.10 Louisiana, which follows the French civil law tradition, applied a community property doctrine from the eighteenth century and preserved it in the civil code it adopted in 1808.11 The other community property jurisdictions are all in the western United States, and they trace their marital property systems back to Spain.12Apart 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.13 Harta bersama is an indigenous Southeast Asian practice in an Islamic conceptual structure, while community property is a continental civil law institution in an AngloAmerican common law system.14 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 other aspects of the legal systems that have incorporated the doctrine.15 The recognition of joint marital property in both Indonesia and the United States is commonly associated with an understanding of marriage as a partnership between the spouses. …