The Application of the Instrument of al-Istihsan bi al-’Urf in “Harta Sepencarian” Practice in Malaysia

This study focuses on the application of the instrument al-Istihsan bi al-`Urfi in justification of “harta sepencarian” practice. Basically, this instrument motion derived from the Hanafi school. But technically, it’s not dissimilar to the instrument `urf according to Shafi’i school. Furthermore, the concept of “harta sepencarian” division is practiced in the Malay community, especially in Nusantara, which is the majority, upholds the Shafi’i school. This study uses library research methodology with reference to the writings of scholars in the Hanafi and Shafi’i school in order to justify the acceptance of the practice of “harta sepencarian” in Shari’ah law. This study tries to find justification in the other school in an attempt to develop a practice that benefits and defense women, particularly to Muslim countries other than the Muslim community of the Nusantara. Despite the possibility of the participation of women in jobs has not become a custody or ‘urf yet that can be recognized for the property in marriage, but domestic duties of women in household management can be the basis for the division of property acquired during a marriage between couples who divorce. This in turn can keep the beauty of Islam in which women’s rights are often seen as the weak and will fall prey to a divorce case. In this division to streamline practice, the theory and practice of law in Malaysia can be an example and extended to other Muslims countries. The study has found that the application of these instruments is in accordance with furu‘ Shafi`iyyah as well as to strengthen the practice of “harta sepencarian” to be practiced in other Muslim countries including the country that adhere to the Hanafi school.