Fatwa ID: 07326
Answered by: Alimah Saniyah bint Asrar
Question:
Please provide an Islamic ruling/fatwa on the following scenario
A man (whom we shall hereafter refer to as the ‘waaqif’) made his house waqf for a madrasa about a year before he died. The waqf nama (deed) was drawn up in which it was stated that he and his current wife will live in the house till he dies, after which the house must be hired out and rental to go the madrasa for which it was made waqf. A condition was that his current wife must be allowed to live in the outbuilding for as along as she lives or until she re-marries.
The waaqif was previously married; we will refer to this wife as his the first wife. Waaqif had divorced his first wife a few years before he died. Some while later his first wife (whom he had divorced) also passed away.
When she died, it was discovered that she was married to the waaqif in a civil marriage (as well as Islamic marriage). According to the western law, a civil marriage is by default in community of property. This meant that, according to this western, non-Muslim law, the wife will receive half of his property upon death or divorce.
As a result of this, the children of the ex-wife laid claim to their mother’s share (that is, the first wife of the waqif). They are claiming from the madrasa half the value of the property on the basis that their mother was entitled to 50 percent of the property since she was married to their dad in community of property.
The questions are:
(a) Is the community of property regime a valid concept in Islamic Shariah?
(b) The waaqif built or bought this property with his own funds. The first wife did not contribute towards the building or purchase of the property. Is she entitled to claim 50 percent of the property?
(c) According to Islamic Shariah, are the children entitled to half share of this property based on the community of property regime between their late father and mother?
(d) Is the madrasa obliged to pay them out their share?
(e) Will this money be halaal for the children?
(f) If the community of property regime is valid according to Islam, what is the status of the waqf made by the waaqif?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
a. The community of property is not Shari’ah compliant. Islamically, what belongs to the husband is his and what belongs to the wife is hers.
b. Islamically, the wife isn’t entitled to claim 50% of the property. Legally, she will be entitled to 50% unless the waaqif wrote in his will stating that his inheritance should be distributed according to the Islamic Laws of Succession and Inheritance.
c. The children are not entitled to half the share of the property based on the community of property regime. Waqf properties can’t be inherited so the children won’t inherit any part of the property.
d. No, as I mentioned above, waqf can’t be inherited.
e. No
f. N/A
الدر المختار شرح تنوير الأبصار وجامع البحار ١/٣٦٩
وشرعا: (حبس العين على) حكم (ملك الواقف والتصدق بالمنفعة) ولو في الجملة،
والاصح أنه (عنده) جائز غير لازم كالعارية (وعندهما هو حبسها على) حكم (ملك الله تعالى
وصرف منفعتها على من أحب) ولو غنيا فيلزم، فلا يجوز له إبطاله ولا يورث عنه، وعليه الفتوى
وَأما إِذا جعل أرضه أَو دَاره وَقفا على الْفُقَرَاء أَو على وُجُوه الْخَيْر فَعِنْدَ أبي حنيفَة إِن جعله وَقفا فِي حَال حَيَاته وَلم يقل وَصِيَّة بعد وَفَاته فَإِنَّهُ يكون هَذَا الْوَقْف صَحِيحا فِي حق التَّصْدِيق بالغلة وبالسكنى فِي الدَّار إِلَى وَقت وَفَاته وَيكون نذرا بالتصدق بذلك وَتَكون رَقَبَة الأَرْض على ملكه يجوز لَهُ بَيْعه والتصرفات فِيهِ
وَإِذا مَاتَ يصير مِيرَاثا للْوَرَثَة وَهَذَا معنى قَول بعض الْمَشَايِخ إِن الْوَقْف لَا يجوز عِنْد أبي حنيفَة أَن الْوَقْف لَا حكم لَهُ عِنْده بل يكون نذرا بالتصدق بغلته ومنافعه
Only Allah (عز و جل) knows best.
Written by Alimah Saniyah bint Asrar
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
