Fatwa ID: 07582
Answered by: Maulana Sarfraz Mohammad
Question
I have a complex situation. I’m in my second marriage and my first marriage was a British and Islamic marriage. From my first marriage, I have one son only. My ex-wife asked for a divorce, I gained Islamic advice and was informed that because the house was in my name and my wife asked for a divorce she was NOT entitled to any financial recompense, however, if I chose to give her money then it is a good deed. I paid her £40,000. I then got married again and after three and half years I moved out with my second wife and put the house on rent.
With my second wife, she had a son from a previous marriage, and he is NOT an orphan. We together have no children. The second house is in joint names via an Islamic mortgage of £185,000. We both gave equal amounts in getting the deposit together and paying the monthly mortgage. My second wife had debts and I gave her £18,500 to pay most of it off. We had an Islamic marriage only.
The first house subsequently burned down in October 2023, the insurance company paid out £137,275. We used £131,000 of this to pay off the mortgage balance of the second home. The first home is also being sold for £90,000. The first house was to be left to my son from my first marriage as his inheritance. The second house was to be left to my wife’s child (my stepson) as his inheritance.
My second wife wants a divorce and so do I. The second house has been valued at £260,000. I have informed my wife that if the house sells for £260,000 then of this, we need to pay my son £131,000 and the £130,000 we split as our settlement. Therefore, we get £65,000 each and move on. I have said that my son may be flexible and I could give him a little less and more to her. However, my second wife wants £130,000.
Please inform me from an Islamic perspective who is right. Does she get £65k (which I can increase as long as my son agrees) or is it £130,000?
In the name of Allah, the Most Gracious, the Most Merciful
Answer
Based on the Hanafi perspective, the division of assets depends on several factors, including the terms agreed upon during the marriage and the ownership of the property in question.
Ownership of the Second House: Since the second house is in joint names and both you and your wife contributed equally towards the deposit and mortgage payments, she is entitled to half of the property’s value. If the property is valued at £260,000, her share would typically be £130,000 based on joint ownership, unless there are specific legal or Islamic agreements that modify this.
In the Hanafi school of thought, the division of property after divorce depends on ownership rather than automatic entitlement due to marriage. According to Islamic principles, ownership of assets remains with whoever purchased or owned them before or during the marriage unless explicitly stated otherwise, such as in a written agreement.
* Wife’s Property: Anything the wife owned before marriage or acquired during marriage (e.g., gifts, dowry (mahr), inheritance, or her earnings) remains her property, and the husband has no claim to it after divorce.
* Husband’s Property: Similarly, anything the husband owned before or acquired during the marriage is his property unless it was specifically given to the wife as a gift or agreement.
* Jointly Owned Property: If there is jointly owned property (e.g., a house or a business), the division should be based on the share each party contributed. This can either be a mutual agreement or a legal process depending on the law of the country.
* Children’s Rights: Children are not entitled to a direct share in the property after a divorce. However, the father is obligated to financially support his children, including housing, food, education, and other needs, until they reach the age of maturity.
Only Allah Knows Best.
Answered by Maulana Sarfraz Mohammad
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
“كل أحد يعلم الجهاز للمرأة إذا طلقها تأخذه كله، وإذا ماتت يورث عنها”.
(الدر المختار ورد المحتار 3/158، باب المهر، ط؛ )
“قلت: ومن ذلك ما يبعثه إليها قبل الزفاف في الأعياد والمواسم من نحو ثياب وحلي، وكذا ما يعطيها من ذلك أو من دراهم أو دنانير صبيحة ليلة العرس ويسمى في العرف صبحة،فإن كل ذلك تعورف في زماننا كونه هدية لا من المهر، ولا سيما المسمى صبحة، فإن الزوجة تعوضه عنها ثيابها ونحوها صبيحة العرس أيضاً”.
(الدر المختار ورد المحتار 3/ 153 ، کتاب النکاح، باب المہر، ط:)
“وإذا بعث الزوج إلى أهل زوجته أشياء عند زفافها، منها ديباج فلما زفت إليه أراد أن يسترد من المرأة الديباج ليس له ذلك إذا بعث إليها على جهة التمليك، كذا في الفصول العمادية”.
( الفتاوى الهندية 1 / 327،)
