Fatwa ID: 07052
Answered by: Muftiyah Zainab Nakhuda
Question:
A man was married to his first wife and they were having problems. Shortly after the birth of their first son they separated and the wife was sent back to her parents hometown. A little while later he remarried. He had a child with the second wife and they lived happily until his demise. In all those years he didn’t contact or support his first wife and no divorce was issued. Upon his demise is iddat compulsory on the both wives or only the second?
Also what is the status of the marriage in such a situation? Is the separation for so many years counted as a divorce or were they still married? The number of years that they were separated for were approximately 40 years
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
A Nikaah is a very sacred bond in Islam, and once it has been established, it will not end or be broken unless there is an actual Talaaq occurs (or something which legally substitutes it, like a Faskh of the Nikaah, Khula’, etc)[1]. A marriage will not end by the spouses being physically separated. A separation does not equate to a divorce Islamically, regardless of how long the couple stayed separated.
In the above case, if you know for sure from the confession of the deceased that he never divorced his wife (and that when he had sent her back to her parent’s home, he did not intend divorce through it), then his wife first has remained in his Nikaah; as a result of this, she will undergo the ‘Iddah as well. Similarly, she will also be included in all other rights of being the deceased’s wife, like in receiving inheritance (she and the son will both receive a share each of the inheritance; she will receive ⅛ of the estate[2]. The son’s share will be dependent on other factors). Care should be taken that the first wife and her child are not deprived of any of their legal rights. The family of the deceased should explain the situation very clearly to the Mufti/Aalim that is assisting them in dividing the inheritance, making sure that they mention the first wife and her son.
It is unfortunate to see that the deceased did not provide any support for the upbringing of his child. It should be noted that whether or not the man divorces the woman, the child’s financial responsibility is on him, the father.[3]
In conclusion, such a marriage will remain intact when the husband passes away, which means that the first wife will also have to sit in ‘Iddah and she will also inherit from the deceased husband.
I hope that this answers the question.
References:
[1] – Al-Binaayah, page 280, Volume 5, Maktabah Shamelah
والطلاق لغة: رفع القيد، وشرعًا رفع قيد النكاح من أهله في محله.
وقيل الطلاق: عبارة عن حكم شرعي يرفع القيد للنكاح بألفاظ مخصوصة، وسببه الحاجة المحوجة إليه. وشرطه كون المطلق عاقلًا بالغًا، والمرأة في النكاح أو في العدة التي يحصل بها محلًا للطلاق، وحكمه زوال الملك عن المحل، وأقسامه ما ذكر في الكتاب.
[2] Surah Nisaa, verse 12
۞ وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَٰجُكُمْ إِن لَّمْ يَكُن لَّهُنَّ وَلَدٌ ۚ فَإِن كَانَ لَهُنَّ وَلَدٌ فَلَكُمُ ٱلرُّبُعُ مِمَّا تَرَكْنَ ۚ مِنۢ بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَآ أَوْ دَيْنٍ ۚ وَلَهُنَّ ٱلرُّبُعُ مِمَّا تَرَكْتُمْ إِن لَّمْ يَكُن لَّكُمْ وَلَدٌ ۚ فَإِن كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ ٱلثُّمُنُ مِمَّا تَرَكْتُم ۚ مِّنۢ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَآ أَوْ دَيْنٍ ۗ وَإِن كَانَ رَجُلٌ يُورَثُ كَلَـٰلَةً أَوِ ٱمْرَأَةٌ وَلَهُۥٓ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَٰحِدٍ مِّنْهُمَا ٱلسُّدُسُ ۚ فَإِن كَانُوٓا۟ أَكْثَرَ مِن ذَٰلِكَ فَهُمْ شُرَكَآءُ فِى ٱلثُّلُثِ ۚ مِنۢ بَعْدِ وَصِيَّةٍ يُوصَىٰ بِهَآ أَوْ دَيْنٍ غَيْرَ مُضَآرٍّ ۚ وَصِيَّةً مِّنَ ٱللَّهِ ۗ وَٱللَّهُ عَلِيمٌ حَلِيمٌ
And your wives will inherit one-fourth of what you leave if you are childless. But if you have children, then your wives will receive one-eighth of your estate
[3] Questions on Nafqah – Darul Ifta Birmingham
Only Allah knows best.
Written by Muftiyah Zainab Nakhuda
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
