Prenuptial Agreements in Indonesia and Malaysia: A Comparative Study on Marital Property Protection Based on Hifz al-Mal

Abstract

Prenuptial agreements have become an increasingly important legal instrument for protecting marital property amid the growing complexity of family financial relationships and post-divorce property disputes. However, existing studies primarily examine their legal validity within a single jurisdiction, while comparative analyses of Indonesia and Malaysia from the perspective of hifz al-mal as a fundamental objective of Maqasid al-Shariʿah remain limited. This study aims to comparatively examine the legal regulation of prenuptial agreements in both countries and their role in protecting marital property based on the principle of hifz al-mal. It employs normative legal research using statutory, comparative, conceptual, and Maqasid al-Shariʿah approaches. Legal materials were collected from legislation, the Compilation of Islamic Law, the Malaysian Islamic Family Law, court decisions, and scholarly literature, and analyzed through qualitative comparative-prescriptive analysis. The findings reveal that both Indonesia and Malaysia recognize prenuptial agreements as legitimate mechanisms for protecting marital property, despite differences in their legal frameworks and implementation. The principle of hifz al-mal provides a normative foundation for strengthening legal certainty, economic justice, asset protection, and family welfare. The originality of this study lies in integrating comparative family law with Maqasid al-Shariʿah, offering a conceptual framework for the harmonization and future development of Islamic family law concerning marital property protection.