|What is Customary Law?|
Customary Law is an ancient or native unwritten law for a particular local place. It is a set of laws that not enacted by legislative authority in a country. In Malay local term we call it as Adat. In Malaysia, we have to 2 major groups of Adat which we known as Adat Temenggong and Adat Pepatih
Adat Pepatih is practiced in Negeri Sembilan. It was democrtatic matrimonial Adat brought from Minangkabau, Sumatera in Indonesia.
Ancestral Properties (e.g. land, orchard, paddy field) are vested in the female members. Female members hold the property in trust for the family. Will cannot dispose off the Adat properties and female members tribe can only inherited in equal shares. Men in Adat Perpatih do not have the right to the Ancestral Properties. A man is a member from his mother’s tribe until he gets married. Upon married, he is accepted into his wife’s tribe.
Adat Pepatih is in conflict with Islamic rules in the sphere of land inheritance. Land is entailed to the women of the tribe who form the permanent members of the customary society. All females must be identified with a piece of customary land.
The female heirs inherit equally their mother's property irrespective of whether or not they predeceased their mother. Their respective daughters in turn inherit the share of predeceased daughters. In other words, the granddaughters of a deceased female inherit through their deceased mother's right of inheritance.
Men are compensated through the system of the tribal exogamous marriage (marriage outside a tribe). When a man marries into a female tribe, his wife already owns a piece of land (e.g. paddy-field) as her share of the customary holding. The unmarried males have the right of life occupancy over the property of their mothers.
Adat Temenggong is favourable to men compared with Adat Pepatih. The Adat Temenggong has been Islamised and has adopted a more patrilineal character (in favor of men in the distribution of inheritance).
Adat Temenggong basicly holds the same rules on distribution of inheritance as Quran, which explains why Adat Temenggong is more acceptable in Malay society.
Under Adat Temenggong inheritance, a daughter is entitled to 1/2 of the entitlement of a son. If there is no son, the daughter is entitled to half of the estate.
If there are 2 daughters and no son, the daughters will be entitled to 2/3 of the estate in equal share.
If there are no children in the marriage, the wife(s) of the deceased will be entitled to 1/4 of the deceased estate. Wife(s) will be entitled to only 1/8 of the estate if there are children.
If the wife dies, the husband is entitled to 1/2 of the wife's estate if there are no children and to 1/4 of the estate if there are children.
If the deceased has children and parents, the parents will be entitled to 1/6 each of the estate.