Fatwa ID: 08252
Answered by Alimah Shireen Mangera-Badat
Question:
First Question:
Division of property according to sharia after divorce if house is under both husband-and-wife names – there was no verbal or written agreement that each holds 50% share in the property. The share of the wife is more in the house than the husband. Husband was also living in the house for 35 months before leaving.
Adding to this, husband was in the house for the total of 35 months, till 1st August 2024. The past 4 months wife is paying the full mortgage.
More information regarding payment towards the house:
Did both the husband and wife contribute to the payment of the house?
Yes, the monthly mortgage to the house was roughly $2750 (it goes up by $2 every month), husband paid $1600, and the rest was covered by the wife. Wife also paid the council rates, house insurance and other maintenance needed in the house like landscaping of the front and backyard. Husband paid the water tax (around $100 quarterly) as it was included in the water bill.
Adding to this, husband was in the house for the total of 35 months, till 1st August 2024. The past 4 months wife is paying the full mortgage.
If so, what percentage did each pay? Amount stated above.
Is the house paid off? No
What do you mean by “The share of the wife is more in the house than the husband.”?
We paid around 115,000 deposits of the house; husband’s share was only $2000 in the deposit. Wife paid $113,000
Second question:
Can wife take some percentage of husband’s super after divorce?
Wife was stay-at-home for quite some time, so her super is very low, and she has full-time custody of 4 kids, no male guardian for the wife as father passed away and no brother. She also has a mortgage to pay too. Having some extra super would give some financial stability.
بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
You have made clear that no written or verbal contract was signed for this ownership, but it is a joint practice between the two.
Shaykh al-Kasani in Bada’i’ al-Sana’i (Vol. 6, p. 132)[1] explains that shared ownership (shirka) arises when multiple parties contribute financially to the acquisition of an asset. Each party’s share corresponds to their contribution unless a different agreement is explicitly made and accordingly will be divided.
When two people invest in a property, their shares are calculated based on their financial input, as detailed by classical Hanafi scholars. The lack of a 50-50 agreement in this case reinforces that shares must align with contributions. You have mentioned here that the wife has made large contributions towards the mortgage.
The wife’s continued payments on the mortgage after separation increase her financial contribution. This can be viewed as further investment in the property. This would then fall under the Fiqh term of Al-ghurm bil-ghunm (liability accompanies entitlement).[2]
When two people invest in a property, their shares are calculated based on their financial input. The lack of a 50-50 agreement in this case reinforces that shares must align with contributions.
Regarding the second question, if you are asking whether she can claim superannuation (a term according to the Collins dictionary used in Australia)—i.e. pension in British terminology—or you could mean alimony, maintenance for the children, then it would be the husband’s responsibility in Islam to do this. The Qur’an has stated:
“…And live with them in kindness. For if you dislike them—perhaps you dislike something in which Allah has placed much good.”
(Surah An-Nisa: 19) [3]
While superannuation itself is the husband’s personal wealth, the wife may request a share if her sacrifices (e.g., staying at home) directly enabled the husband to accumulate wealth. This aligns with the principle of cooperation in marriage. [4]
Given that it is the father’s responsibility to provide maintenance, it would be permissible to take from the father. [5]
Therefore, to summarise:
In Hanafi Fiqh, property division is based on financial contributions, giving the wife approximately 72.5% ownership due to her larger input, while the husband holds 27.5% (according to your calculations).
Post-divorce payments by the wife increase her share. Although the husband’s superannuation is his personal wealth, the wife may claim a portion based on her sacrifices and financial responsibilities, supported by Islamic principles of fairness and removing harm, especially given her custody of the children.
I hope that this answers the question.
Only Allah knows best.
Written by:
Alimah Shireen Mangera-Badat
Checked and approved by:
Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1][1] …………..قال أصحابنا الثلاثة رضى الله عنهم ان عقده عقد هبة وجوازه جواز بيع وربما عبروا انه هبة ابتداء بيع انتهاء حتى لا يجوز في المشاع الذي ينقسم ولا يثبت الملك في كل واحد منهما قبل القبض ولكل واحد منهما أن يرجع في سلعته مالم يقبضا وكذا اذا قبض أحدهما ولم يقبض الاخر فلكل واحد منهما أن يرجع القابض وغير القابض فيه سواء حتى يتقابضا جميعا ولو تقابضا كان ذلك بمنزلة البيع يرد كل واحد منهما بالعيب وعدم الرؤية ويرجع في الاستحقاق وتجب الشفعة اذا كان غير منقول…………
https://archive.org/details/BadaiAsSanai/6/page/n131/mode/2up
badai As Sanai volume 6- page 132
[2] …….لا فرق بين الشخص الطبيعي والشخص الاعتباري من حيث الضمان المالي فالشخص الطبيعي قد يسأل جنائياً، أما الشخص الاعتباري فلا يسأل إلا من حيث التعويض فقط . والفرق بينهما أنه لا إرادة للشخص الاعتباري فهو شخص حكمي وإنما يسأل بالتعويض على اساس مسؤولية المتبوع طبقاً لمبدأ الغرم بالغنم………..
مؤلفات فضيلة الشيخ عبد القادر بن محمد العماري، page 38
[3] فَإِن كَرِهْتُمُوهُنَّ فَعَسَىٰٓ أَن تَكْرَهُوا۟ شَيْـًۭٔا وَيَجْعَلَ ٱللَّهُ فِيهِ خَيْرًۭا كَثِيرًۭا ١٩………
[4] قال: النفقة واجبة للزوجة على زوجها، مسلمة كانت أو كافرة، إذا سلمت نفسها
https://archive.org/details/AlHidayahVol5/Al%20Hidayah%20Vol-3/page/n317/mode/2up
, الهداية volume 3, page 318
هل تقدير القاضي للنفقة حكم منه؟ قلت : نعم، لأن طلب التقدير بشرطه دعوى فلا تسقط بمضي المدة………..ا
[5] رد المختار
, volume 5, page 300
