Fatwa ID: 01327
Answered by Mufti Mohammed Tosir Miah
A British couple living in the UK that have three children aged 9, 5 and 2 are looking to get divorced. When they got married 11 years ago they had the Islamic nikah done as well as getting the marriage registered by going through the registry office process to have the marriage recognised in the UK. Now that the time of divorce has come, the desire is to follow the Islamic method for a divorce settlement. It is understood that in the UK, if the couple mutually and formally agree a settlement according to shariah principles and ask the court to proceed with the settlement on that basis via their respective solicitors, then the court will agree to the proposed settlement. Therefore, it is understood that there is no law stating that because the couple have to go to court to obtain a legal divorce (divorce certificate) that the settlement also has to be done according to the court’s own ruling based on UK (English) law. It can be done according to shariah law if both parties agree to this.
Therefore, i would like to have a ruling on the following questions in the context that the couple are living in the UK and also have a registered marriage under English law, have three young children and the wife does not work at the moment or have any income: 1. When having a divorce settlement done according to shariah, what is the wife entitled to by right?
2. Does the above entitlement change in anyway if looking to do the settlement according to shariah in the UK? Are there any particular circumstances for the wife and children that may alter the wife’s shariah entitlement, i.e. does what she may or may not receive as benefits from the welfare system in terms of housing and money payments influence what she is entitled to according to shariah?
3. If the husband is willing to pay the children’s maintenance as per his shariah obligation, i.e. food, clothing and accommodation, then is the wife entitled to claim anything further from the husband according to shariah?
4. To obtain a legal divorce in the UK, the couple will have to go through the courts to obtain a Decree Absolute. However, does this give the wife permissibility from an Islamic perspective to have a settlement done using UK (English) law, which is based on the judge's view of circumstances, and gain more than what she is actually entitled to according to the shariah, even if the husband does not wish to give more than the shariah requirement? Do any set of circumstances allow the wife to do this?
5. Is the stance "we live in the UK with a registered marriage so the wife is entitled to a settlement according to UK law" permissible even if the settlement contradicts with shariah entitlement?
6. The wife is insistent that after the divorce her and the children remain in the current house (marital home), which is wholly owned by the husband and in which the wife has no share at all. Furthermore the husband has an outstanding loan from his father (qarz-e-hasana) on the house which is to be repaid. The wife is trying to justify her and the kids remaining in the house in terms of Islamic permissibility and citing that the house is the children's home and it will affect them negatively if they have to move out and settle elsewhere. In this context and the fact that the husband is willing to fulfil his shari’ obligation of providing accommodation for the children elsewhere (where the wife would live as well as she would have custody of the children), is she permitted from an Islamic perspective to: a. Force the husband, via the courts, to give up the house by transfer of ownership (or some part of) to her name under any circumstances during the divorce settlement?
b. Force the husband, via the courts, to move out of the house so that her and the children can remain living there even though she doesn't request the ownership of the house to change from the husband’s name?
7. According to shariah, is the wife’s settlement entitlement dependent in any way on the reasons for the divorce taking place? Or is the entitlement the same regardless of the reasons for divorce and whether it is the husband or the wife asking for divorce?
In the name of Allah, the most Beneficent, the most Merciful.
The rule of the Shariah is that a husband is obliged to maintain his wife until the end of her waiting period, which for a menstruating woman is three menstruation cycles.
Ibn Nujaym has said,
“There are three avenues where the Shariah has made maintenance obligatory; the first is in close relations, second, marital relation and third on ones possessions. Maintenance is obligatory as someone is being restricted in order to fulfil another’s rights; hence, their maintenance is obligatory upon the one (husband) who is restraining them.” (Bahrur Raaiq p.188 v.4)
When a wife passes her waiting period, she has now become a stranger to her ex-husband and maintenance is not binding for one strange person upon another. (Bahrur Raaiq p.194 v.4)
In a nutshell, the only right the wife has in a divorce settlement is the maintenance given by her husband until the end of her waiting period.
The aforementioned entitlement does not change whether the divorce settlement is done according the UK law. The husband is only obliged to give her maintenance during her waiting period. The amount he gives during her waiting period can be increased or decreased according to her needs in terms of the accommodation, food and clothing.
The wife can only claim for that she is entitled to during her waiting period. After the waiting period, she has no right on her husband.
It depends on whether the husband is willing to pay the extra amount which he would have to pay if the divorce went through the UK courts. If he is happy, then it will be considered as sadaqah. If he is not, then it will be considered as ghasab (usurping), as to take the wealth from its owner without his consent or happiness is classed in the Shariah as ghasab. (Badaaius Sanai p.143 v.4)
The husband and wife should try to come to a solution where the law of the Shariah is acted upon in such a way that it does not contradict the law of the country.
It will not be permissible for the wife to use the courts to transfer some part of the house into her ownership and also to force the husband out of the house during the divorce settlement. As I mentioned above, this will be considered as ghasab.
Allah has said:
“And eat up not one another’s property unjustly (in any illegal way, e.g. stealing, robbing, deceiving” (Surah Baqarah v.188)
The Prophet of Allah said: “Whoever seizes a hand span of land unlawfully, will surround him to the depth of seven earths.” (Sahih Bukhari)
The entitlement of the wife’s settlement would be as I mentioned above upto the waiting period, irrespective of whether the husband gave the divorce or the wife initiated it.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham