Fatwa ID: 07866
Answered by Maulana Nuski Cassim
Question:
After divorce, the father is responsible for providing nafaqah for the children – in my case, two daughters – until they get married. As I understand, the nafaqah should cover their expenses for food, clothing, and shelter.
I had calculated the nafaqah based on the bills and expenses from the past two years (prior to the divorce). From this, I determined an average nafaqah of £300 per month. This amount also includes fees for their madrasah education (as well as gas and electricity bills, and food and clothing costs). However, I did not include rent, water or council tax, which I will explain ahead.
The children, along with their mother, now reside at her parent’s house, where her parents are already covering their own council tax and water bills. As these bills are not dependent on the amount of residents or usage, I feel they did not need to be considered in nafaqah. Similarly, they have not asked me for rent for the children. On the other hand, gas and electricity bills are dependent on usage which will increase due to my two daughters.
After I presented this amount to my ex-wife, she chose to involve CMS (Child Maintenance Services). Although the reasons were not discussed with me, I had no real choice but to agree to the CMS method. Their basic calculation method is worked out as 16% of my gross income (for 2 children). This came to a total of £308 per month. The ex-wife has set up a separate bank account for the purpose of nafaqah so that I can deposit the payments, however, only she has access to this account.
PS. The amount I had worked out (£300) was open to discussion and negotiation, hence if the ex-wife felt the amount was insufficient, she was at liberty to present her opinion.
The CMS gives two payment options:
a) DIRECT PAY where I make sure to deposit the amount on a monthly basis to the above-mentioned bank account. This is the current method I am using.
b) If I fail to deposit the amounts on time, option 2 will come into force known as COLLECT & PAY. This is where the CMS takes money out of my account directly and then forwards the payment to the provided bank account mentioned above.
Questions:
1) When choosing the Islamic nafaqah, there is flexibility in determining who will receive ownership of the payments. I could retain ownership myself or designate either my ex-wife or the children as the owners.
As for CMS, it is given to the main carer, who in my case is the ex-wife. Will transferring the money to the specified account automatically make her the owner or will it be permissible for me to make her the wakeel whilst I remain the owner?
2) Is there any sin or dislike as the ex-wife has chosen the CMS option, especially considering that the Islamic nafaqah was presented to her and the amounts were nearly identical?
3) One issue with CMS is that it calculates payments as a percentage of income rather than based on the actual needs of the children. For instance, if the required nafaqah is £300, but CMS determines a lower amount of £250. In such a case, would I be absolved of my nafaqah duty by paying £250?
4) Moreover, the CMS is reviewed annually. As a result, if my gross income decreases, the CMS payments will also decrease; if my income increases, the payments will rise accordingly. If the payments exceed the children’s actual needs – for example, if they require £300 but CMS demands £400 – will this extra £100 be considered impermissible? This is especially relevant considering the hadeeth: لا يحل مال امرئ مسلم إلا بطيب نفس منه (as CMS would be forcefully asking for this extra £100 from me and I have no real option to negotiate the amount with CMS)?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
You have correctly stated that financially looking after one’s daughters until they get married is the sole responsibility of the father—this is the case whether he be divorced or not.[1][2]
What is included in the nafaqah (expenditure) of children in the event of divorce?
Nafaqah of both one’s wife [in the case of marriage] and one’s children is determined by one’s social standing and local customs (‘urf). Customary expenditure will vary from place to place.
In the event of divorce, nafaqah of children is limited to:
- Food
- Clothing
- Shelter*
*In this scenario, you would need to explicitly inform your previous in-laws about this duty of yours. If they mention that it is something not to worry about or that they don’t want any rent etc., then you would be absolved of this.
Because your ex-wife is involved in the CMS, you are bound to follow their ruling and determination [of payment etc.].
The answers to your questions are as follows:
- Your ex-wife will become the owner.
- This was not necessarily sinful on her end—there could have been reasons behind her decision to involve the CMS.
- You would need to transfer the remaining £50 as this is part of the determined (haqiqi) nafaqah.
[Along with this transfer, you can attach a note or another form of proof [to your ex-wife] that this money is nafaqah for the children. This could possibly help you in the long run.]
- If CMS decreases your payments due to a reduction in salary, then you are to take care of the disparities [if any] from your end. Naturally, with a reduction in salary, there is a reduction in family expenditure.
If CMS increases your payments [beyond the actual nafaqah] due to your salary increasing, then unless there is a legal route whereby you can amend this, consider and intend the extra amount as a sadaqah and gift towards your daughters and their wellbeing—this will be your ihsan towards them.
هَلۡ جَزَآءُ ٱلۡإِحۡسَٰنِ إِلَّا ٱلۡإِحۡسَٰنُ
“Is the reward for good [anything] but good?” – Surah Al-Rahman: 60
Only Allah knows best.
Written by Maulana Nuski Cassim
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
1.
والنفقة على الأب على ما نذكر ولا تُجبر الأمّ عليه لأنها عست تعجز عن الحِضانة
[الهداية شرح بداية المبتدي، باب الولد من أحق به، ج ٢، صفحة ٢٨٣، دار احياء التراث العربي]
2.
والرَّجلُ راعي أهلِ بيتِه وهو مسؤولٌ عنهم
[صحيح ابن حبان، رقم الحديث ٤٤٩١]
