Fatwa ID: 06528
Answered by: Maulana Mohammed Dilwar Hussain
Question:
My question concerns financial obligations in accordance with Shariah towards a woman after she is to be divorced. To provide some contextual background, my wife and I have been having marital discord for a year now, mid 2020, she left home with our two children (boys aged 14 and 11yrs) after which she forced me to give her one talaaq (not of my choice). Subsequently (during her iddah period), she went to a local Imam who is also a Raaqi and had Ruqyah performed (supposedly to help her support her decision to pursue divorce).
After the Ruqyah was performed by our local Imaam (in accordance with Quran and Sunnah), she agreed to suspend civil divorce proceedings, agreed to come back home (which she was totally not agreeing to prior to Ruqyah) and also agreed for me to revoke the talaaq. Upon her return home, we stayed physically separated (in separate accommodations) for a further 2 months until she travelled abroad. Upon her return (last week) from having been abroad for circa 3 months I moved back into our flat, however, she has stated that she’ll remain in the marriage for the sake of the kids but does not want me to have any physical contact with her (including not wanting to sleep in the same room as her). She wants to maintain physical separation – she’s expecting me to fulfil my marital obligations towards her (accommodation, maintenance etc), however, in return is just expecting me to remain civil and accept her decision to remain in the marriage as per her wishes. It’s apparent that she’s not willing to fulfil all of her marital obligations towards me which equates to oppression. To put it a bit more clearly, she wants the joys of marital life, without giving me my full marital rights in return. Its quite clear that she wants everything associated with me but doesn’t want me! Her level of communication with me is minimal and she’ll happily spend most of the day in a separate room conversing with friends and being on her mobile phone. She’s generally sat in the same room as me when having a meal as a family – her mode of operation currently is “let me get on with what I’m doing, don’t interfere in my life, and I won’t interfere in your life”.
She states that she cannot fulfil her obligations towards me as a wife, and to me, it seems that she’s operating in a manner by which she forces me to leave her (as a result of her not fulfilling her obligations towards me, lack of respect etc….). I’d like to know from a Shariah perspective what the ruling is concerning financial obligations and rights if I was to divorce her for not fulfilling her rights towards me. What I mean to say is that she has mentioned a couple of times that she has rights (Islamically) that I provide her accommodation after divorce and that she has “HAQ” upon any financial savings that I may have because she hasn’t worked previously (due to her being a housewife and responsible for the upbringing of the children). Leaving the UKs civil rulings aside, I’d like to know what the Shariah ruling in light of Quran and Hadith is concerning IF and what is owed (if anything) to a woman if she instigates a divorce (via Khula or Faskh) or if she is divorced by her husband. Please can you let me know clear Shariah guidance?
I’ve tried local Shariah councils here in the UK, and it seems that they will not involve themselves where the local laws of the land may coincide with their rulings, as such, they avoid even giving a ruling and say that this is a civil matter. Either you are aware, or if you can obtain clear-cut guidance for me to make it absolutely clear if she has any right upon any share in my property/accommodation if I was to divorce her and if she has any financial rights to any savings that I may have. We haven’t even discussed child custody, and I wouldn’t dispute providing her maintenance for the children if she wanted custody of them.
In previous sittings with the Imam for mediation, she has accepted she’ll follow the Shariah ruling and for that, I’d like to know what Shariah states in such a situation. I’d like to make clear that the UK Shariah courts are more than often bound by the law of the UK Civil courts and most often they would happily decide to go with UK court rulings and would refuse to give a Shariah opinion on some matters (a simple example is child custody, they don’t get involved as they suggest that this is a civil matter in the UK and not Shariah). Where UK law applies, the Shariah councils are bound by UK Civil laws. I’d appreciate it if you can kindly help with my situation as detailed above.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Method of Divorce
Uttering the words of Talaq (divorce) fall under two categories; Sareeh (clear wording) and Kinaya (vague wording).
If clear wording is used, such as “I divorce you” “you are divorced” or “I give you Talaq” whether they be said in person or not, via message, with witnesses present or not, etc. then this will cause talaq (divorce) to occur immediately. The wife will then need to enter into Iddah. The inference of such wording would mean Talaq Raj’i will occur which would subsequently allow for reconciliation to take place within the iddah period without the need of renewing the Nikah. Verbally uttering words or gesturing to her to return would be sufficient for the marriage to renew. Even looking at her with desire and lust would also have the same effect. If reconciliation is not done during her iddah period, then a new Nikah will need to be done along with a new Mahr being stipulated and paid. [Al-Hidāyah; volume 2, page 380] [1]
However, the use of vague wording where ambiguity remains (i.e., using such wording which would not normally infer divorce) will require an intention of divorce to be present at the time of using such wordings. If an intention of divorce is not made at the time of using such wordings, then talaq will not take place. Examples of such wordings would be, as you have said “I free you,” “I release you,” “get out of here,” “I don’t want to see you again” etc. If an intention is made then Talaq will occur. If the couple wishes to reconcile, then they will need to conduct a new Nikah along with a new Mahr being stipulated and paid. [Al-Hidāyah; volume 2, page 391-392] [2]
Simply uttering the words of Talaq or typing them up alone is not sufficient for Talaq to take place. They need to be directed towards somebody, either by saying it directly to them as described above or by mentioning the wife’s name in the sentence.
Nafaqah (monetary contributions) After Divorce
During the period of Iddah the divorced wife, she will continue to receive her regular rate of Nafaqah.
Allāh Ta’ālā says, “Provide to them (the divorced women) residence where you reside according to your means, and do not harm them in order to oppress them. And if they are pregnant, spend on them till they give birth to their child. Then if they suckle the child for you, give them their payment, and consult each other (for determining the payment) with fairness, and if you are in discord between yourselves, then another woman may suckle him.” [Surah al Talaq, 65:6] [3]
However, after that period concludes, she will not be liable to receive any other payments of Nafaqah except for that which is required to support your children unless she is pregnant. Then her Nafaqah will continue until she gives birth. Otherwise, after the period of Iddah concludes, you will cease to support her financially.
Nafaqah constitutes providing clothing, food and shelter. The children will be liable to receive these from the father or the monetary equivalent thereof until they reach an age where they are now able to earn for themselves (i.e., puberty). If the child has some sort of disability restricting his ability to work, then this Nafaqah payment will carry on. [Radd ul Muhtaar, vol 5 page 278] [4]
Allāh Ta’ālā says, that a wealthy man should spend according to his means and anyone with limited wealth should spend whatever Allāh has given to him.
“Let a man of wealth spend from his wealth, and he whose provision is restricted – let him spend from what Allāh has given him. Allāh does not charge a soul except [according to] what He has given it. Allāh will bring about, after hardship, ease.” [Surah Talaq, 65:7] [5]
The idea of one’s spouse getting half of the other spouse’s wealth at the time of divorce is a western concept and has no place in Shariah. Allāh Ta’ālā has decreed what is absolutely best for us and the methods through which these things are achieved.
In light of what you have said, as you have two children, divorcing your wife may not be the best outcome for you or them. We would highly urge further mediation, as divorce when children are involved should be the absolute final outcome after all other avenues have been exhausted. After mediation, if your wife is still unwilling to fulfil some of your needs then perhaps a better resolution may be for you to take a second wife while carrying on maintaining your first wife. We do not know your financial situation, but if it is feasible then this could be a better alternative. Thus, your children would not grow up in a broken family.
Only Allāh Ta’ālā knows best.
Written by Maulana Mohammed Dilwar Hussain
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1]الطلاق على ضربين: صريح وكناية. فالصريح: قوله أنت طالق، ومطلقة، وطلقتك، فهذا يقع به الطلاق الرجعي لان هذا الألفاظ تستعمل في الطلاق، ولا تستعمل في غيره، فكان صريح
[2]وبقية الكنايات، وهذا مثل قوله: أنت بائن، وبتة، وبتلة… لأنه تحتمل الطلاق وغيره، فلا بد من النية
[3]أَسۡكِنُوهُنَّ مِنۡ حَيۡثُ سَكَنتُم مِّن وُجۡدِكُمۡ وَلَا تُضَآرُّوهُنَّ لِتُضَيِّقُواْ عَلَيۡهِنَّۚ وَإِن كُنَّ أُوْلَٰتِ حَمۡل فَأَنفِقُواْ عَلَيۡهِنَّ حَتَّىٰ يَضَعۡنَ حَمۡلَهُنَّۚ فَإِنۡ أَرۡضَعۡنَ لَكُمۡ فَـَٔاتُوهُنَّ أُجُورَهُنَّ وَأۡتَمِرُواْ بَيۡنَكُم بِمَعۡرُوف وَإِن تَعَاسَرۡتُمۡ فَسَتُرۡضِعُ لَهُۥٓ أُخۡرَىٰ {
[4]وشرعا: (هي الطعام والكسوة والسكنى) وعرفا: (ونفقة الغير تجب على الغير بأسباب الثلاثة: زوجية وقرابة وملك) بدأ بالأول لمناسبة ما مر أو لأنها أصل الولد (فتجب للزوجة) بنكاح صحيح
[5]لِيُنفِقۡ ذُو سَعَة مِّن سَعَتِهِۦۖ وَمَن قُدِرَ عَلَيۡهِ رِزۡقُهُۥ فَلۡيُنفِقۡ مِمَّآ ءَاتَىٰهُ ٱللَّهُۚ لَا يُكَلِّفُ ٱللَّهُ نَفۡسًا إِلَّا مَآ ءَاتَىٰهَاۚ سَيَجۡعَلُ ٱللَّهُ بَعۡدَ عُسۡر يُسۡرا {
