Harta Sepencarian Agreement Lawyer in Malaysia: Scope, Documents and Getting a Quotation

A lawyer for a harta sepencarian agreement prepares the scope of work and a quotation after reviewing the assets, what the spouses want to achieve and any conflict of interest, not from the question "how much?" alone. An agreement of this kind can be a binding contract if the requirements in section 10 of the Contracts Act 1950 are met: it is made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object.

Understanding the scope from the start helps you avoid paying for work that actually needs a different process, such as a transfer of title, dealings with the bank, a hibah, a will, a trust or separate advice for each spouse.

In short: start with a review of the facts and a conflict check. A good quotation explains the proposed work, what is not included, and any third-party costs that may be charged separately.

Harta sepencarian is a concept of Islamic family law for Muslim spouses, and Islamic family law is state law. This page is about a voluntary agreement between spouses. It is not about a contested claim in the Syariah Court or carrying out a court order.

What might the lawyer do?

The scope depends on your situation. It can include:

• an initial assessment of what the spouses want to achieve and the assets they want to discuss;

• a review of existing ownership, financing or planning documents;

• identifying jurisdiction issues, third parties or additional documents;

• a conflict of interest check;

• advice on a suitable scope;

• preparing and reviewing a tailored draft; and

• guidance on follow-up steps that may need to be handled separately.

A lawyer cannot promise that a document will produce a particular percentage, bind the bank, transfer an asset or decide the outcome of a future court case.

"Many couples ask about the price before we even know what they actually want to resolve. Our work starts with understanding the assets and the objective first. Only then can the scope and the quotation be accurate," says Akmal Saufi Mohamed Khaled, lawyer and principal of ASCOLAW (Messrs Akmal Saufi & Co).

Information to prepare for a quotation

For an initial assessment, prepare as much of the following as you have:

• the names and contact details of the person or people seeking advice;

• a short summary of what you want to achieve;

• the state or jurisdiction that is relevant;

• a list of the assets you want to discuss;

• title documents, land searches, the SPA (sale and purchase agreement) or other ownership documents;

• financing documents, if an asset still has a loan;

• basic information about the relevant contributions or payments; and

• any hibah, will, trust or other agreement that may be related.

This is not a mandatory list for every case. After the initial review, the lawyer may ask for more information or suggest that a particular issue should be handled under a different scope.

Can one firm act for both spouses?

It depends on the facts and on a conflict check. ASCOLAW has procedures to identify conflicts or potential conflicts, and needs complete information about the people and interested parties involved.

After the check, the firm may be able to act for both spouses, for one spouse only, or not at all. In some situations, separate advice for each spouse is more appropriate. Do not assume one firm can act for both spouses in every case.

What affects the scope and the quotation?

Factors that can change the scope include:

• the number and type of assets;

• incomplete titles or documents;

• financing, a charge or third-party interests;

• business assets, or assets in another state or jurisdiction;

• planning documents that need to be aligned; and

• whether the spouses already share a basic agreement or need separate advice.

ASCOLAW's General Terms of Engagement provide that the scope of work is agreed in writing, and that a fee estimate depends on the information given and the work required. An estimate is not a promise of a maximum amount if the facts or instructions change.

A harta sepencarian agreement is not a scale-fee service under the Solicitors' Remuneration Order 2023 (SRO 2023). It is charged on a fair and reasonable basis, with the estimate prepared according to the complexity of the scope, not as a percentage of the asset value. That is why a quotation can only be given after an initial review, not before.

Costs that may be separate

Professional fees are different from disbursements and third-party costs. Depending on the matter, separate costs may arise for searches, registration, duty, travel, experts or other processes outside the drafting scope.

The quotation should state what is included, and what may need further instructions or extra costs.

What is not automatically included?

The agreement and the drafting scope do not necessarily include:

• a transfer or registration of title;

• a bank release or bank consent;

• a hibah, will or trust;

• court proceedings, Sulh (court-assisted mediation) or a court order; or

• resolving a dispute that already exists.

If your matter involves a divorce, a dispute or a harta sepencarian claim, joint instructions for planning documents may no longer be the right approach.

How ASCOLAW can help

ASCOLAW will assess your initial information, carry out the appropriate checks, and let you know the proposed scope or any further material needed before a quotation is prepared.

Fill in the ASCOLAW enquiry form below with a short summary of your situation. Tell us which state you are in, the assets you want to discuss, whose name they are in, whether any of them still has a bank loan, and whether you are enquiring for yourself alone or for both spouses.

Frequently asked questions

How long does it take to get a quotation?

That depends on how complete your information is. Once the initial review and the conflict check are done, the firm will tell you the scope and the fee estimate before any work starts.

Can we make a harta sepencarian agreement while we are still married?

Yes. Many couples make one during the marriage as early planning, not only when facing a divorce. What the document can achieve still depends on its terms and the facts.

Is the agreement valid even if it is not registered at the land office?

Whether it is valid as a contract between the parties depends on the Contracts Act 1950, not on registration of title. But any transfer of an asset still has to go through a separate registration process at the land office.

What happens if one spouse does not agree with the draft?

The firm cannot force agreement. If there is no basic agreement after advice has been given, separate advice for each spouse may be more appropriate than continuing with a single joint draft.

How is a harta sepencarian agreement different from a harta sepencarian claim in court?

The agreement is a planning document made voluntarily by the spouses, usually before any dispute. A harta sepencarian claim in the Syariah Court arises after a divorce or a death and involves separate litigation.

This article is general information and not legal advice for any specific situation. Islamic family law is state law, and the enactment and procedure can differ from state to state. The SRO 2023 applies to solicitors in Peninsular Malaysia. The effect of any agreement on a future harta sepencarian claim depends on the Syariah Court's assessment of the actual facts.

Related guides

• Transferring Property Between Family Members in Malaysia: When Is It a Love and Affection Transfer?

• Land Title Transfer Procedure In Malaysia

• Discharge of Charge by Lawyers