Divorce Query/Divorce Assets

Divorce Query/Divorce Assets

Question:

Salam Alaykum WaRahmatullah

I was referred to DarulIftaa for seeking Islamic guidance according to the Qur’an and Sunnah.

I humbly seek an Islamic ruling from a qualified Mufti or team of Muftis, Fuqaha and/or ‘Ulema in an issue pertaining to my divorce. I have written a detailed description of the issue in the attached document.

Insha’Allah, I will also be sending this question to various other DarulUlooms including:

JamiahQasimulUloom: http://www.jquloom.ca/

DarulUloom Canada: https://www.ducanada.org/

Shariah Board Of New York: https://sbny.org/

Sirajul Ulum Institute: https://sirajululum.com/

DarulIlm Birmingham: https://darul-ilm.co.uk/

DarulIftaa: https://daruliftaa.net/

DarulIftaa Leicester: https://daruliftaa.com/

DarulIfta Birmingham: http://daruliftabirmingham.co.uk/

I kindly request an expedited response in this matter if at all possible.

In case the attached document is not viewable I have pasted the contents of the document in this email too:

Summary

Salam Alaykum dear Muftis, Fuqaha, and ‘Ulema

My name is Shehzad. I live in the Greater Toronto area in Canada and I am facing a tough situation in which I need Islamic guidance.

I am currently in the beginning stages of going through a divorce with my wife and we are at odds in regards to our Islamic understanding of how to divide assets in the marriage. In summary, she believes she is Islamically entitled to use the Canadian Family Law to resolve matters in regards to asset division. The law here allows for what is known as “Equalization of Assets” which essentially means that the party who acquired more assets during the marriage, his/her assets gets divided in half and given to the other party.

My argument is it is Islamically impermissible for us to claim each other’s assets in a divorce according to the Sharee’ah no matter whose assets are to be divided, and that whatever property she owned or earned during the marriage is hers to keep, and whatever is mine is mine to keep post-divorce, and that we cannot as Muslims claim anything of each other’s assets just because Canadian law allows it.

In the next couple of pages, I have attempted to detail what the different opinions I have received from speaking with imams/shuyukh in my city. But my wife still maintains her position that it is her Islamic right to use the Canadian Family Law to take what the law allows her.

I have refrained from providing names of anyone I spoke to in my detail as I did not get their permission to include them in this question.

After my detail, I have provided a list of very specific questions that I would like answered, bi ithnillaah. I kindly request that a team of knowledgeable Muftis, Fuquha, and/or ‘Ulema please review this matter and provide a written and stamped ruling, with mention of evidences, fataawa, etc. as to the correct Sharee’ah position based on the Qur’an and Sunnah.

I would humbly request that I could have an answer as soon as possible as my wife and I will be outlining the terms our separation agreement in the near future and I would like to have a clear Islamic understanding of what we are Islamically entitled to in our divorce so as to avoid excessive arguments.

A response can be sent to my email at shaz102@hotmail.com. If further information is required, I can also be reached at 647 308 6145.

Jazakumullahukhairan.

Shehzad

Detail

I got married almost 4 years ago to a Muslim woman, and unfortunately the marriage has broken down and we have decided to divorce. I have not yet pronounced any Islamic divorce upon her as we are in the beginning stages of sorting out the details of a legal separation agreement first.

The problem is that my wife believes she is Islamically entitled to use the Canadian Family Law to divide and take from my assets what the civil law entitles her to, which is essentially 50% of the increase in value of my assets during our marriage, of which she did not contribute to financially. This is called “Equalization of Assets” under Canadian Family Law.

I am trying to reason with her telling her that this is Islamically impermissible as she has no right to claim anything of my assets apart from what I owe her Islamically. She said she spoke with two imams in our city and they told her that it was Islamically permissible to use the Canadian Family Law to handle matters of dispute in this divorce meaning she is Islamically entitled to take whatever the Canadian Family Law allows. When I asked her to name those imams whom she spoke to so I could speak with them myself she refuses to tell me, although I already knew who one of them was because she has counselled with him before regarding our marital issues.

Since I wanted to confirm if the information she received was correct according to the Sharee’ah, I asked an Imam at the masjid I frequently attend (call him Imam 1) and he at first told me that Islamically she is not entitled to my assets nor I to hers, and that the basic principle in Islam is that apart from her Mahr, and maintenance during her ‘Iddah, he said, “what’s yours is yours, and what’s hers is hers”. He also said that you can give her a year of maintenance beyond that, but that it is not mandatory.

Then I went to another masjid in our city and spoke to a well-known Imam there (call him Imam 2) to make sure I was getting the correct position based on the Qur’an and Sunnah. And he confirmed that she was not Islamically entitled to my assets unless she contributed to a portion of it, then she is owed only her portion. He said what she is entitled to upon divorce according to the Sharee’ah is full payment of her Mahr, full maintenance during her ‘Iddah, and perhaps a year of maintenance but that is not required. Basically, the same answer that Imam 1 told me.

So I asked my wife to come and meet with Imam 1, so we could both understand our Islamic rights, responsibilities, and entitlements during our divorce according to the Sharee’ah. She agreed. In the beginning of the meeting Imam 1 presented a list of Islamic rights and responsibilities for the husband and wife during a divorce, which was in line with what he said earlier about whatever was owned by me was mine to keep, and whatever was owned by her was hers to keep, including gifts given to each other. And anything that was jointly owned, should be divided according to the ownership.

She maintained her position that the two people she spoke to said it was Islamically permissible to follow the Canadian Family Law. I asked her again who she spoke to and she refused to tell me their names. Thereupon, Imam 1 said that she has a valid argument. He said, it is the position of some shuyukh that when I signed the civil marriage documents during the nikah ceremony, I implicitly agreed to relinquish any disputes in divorce to the Canadian Family Law.

I told him when I signed the civil marriage certificate it was because I had to do it in order to register and document the marriage in my province. I by no means intended it to mean that I as a Muslim accept the man-made laws over the Sharee’ah in settling disputes in case of divorce.

So, I called back Imam 2 to confirm if this position was Islamically correct and he said that he didn’t know where Imam 1 got that information from and he re-iterated that the Sharee’ah position is that my wife has no right on my property or wealth apart what from what is Islamically owed.

In the time since, I have spoken to two other people regarding this matter. One very prominent Shaykh in the Toronto area (call him Imam 3) and also the imam that I know my wife spoke to who she alleges told her that it was Islamically permissible to use Canadian Family Law to settle asset disputes in divorce (call him Imam 4).

Imam 3 re-iterated the same opinion that it is Islamically impermissible to take assets from your spouse in divorce apart from what they give freely, and that what she is owed Islamically is her full payment of her Mahr upon divorce, maintenance during her ‘Iddah, and he made mention of a Mata’a or a gift to her as a compensation for the divorce. When I asked him what is the amount of that gift, he said it is left ambiguous but that claiming it as half of the husband’s earned assets is beyond reasonable

When I discussed with Imam 4, the one my wife spoke to, he gave to me in writing:

“I, (name) am not a mufti… I don’t issue fatwa. I was asked whether the Canadian civic divorce law was acceptable. I said: I don’t see anything wrong with it. I recommend to you, Shehzad, to find a mufti in whom you have confidence and seek an Islamic ruling regarding your particular case and divorce proceeding.”

So it appears he was not giving her a fatwa in this case, but was only giving her a personal opinion. He was also adamant that he only does marriage counselling and does not get involved with issues in divorce jurisprudence.

I feel like the Islamic rulings I have received on this take the same position with regard to this matter but perhaps my wife is taking a minority opinion that suits her position to get more than the Sharee’ah actually allows. Based on my own research which I have included in the references section, they indicate that it is Islamically impermissible for one spouse to claim the assets of the other in a divorce dispute and using the civil divorce system to take more than what is Islamically owed is completely impermissible in our religion, and that civil law does not reprieve a Muslim’s responsibility to adhere to the Sharee’ah in matters of dispute.

Questions

Dear Muftis, Shuyukh, Fuqaha, ‘Ulema, I ask you plainly and clearly in the name of Allah swt. What is the correct ruling in my case?

What do I owe my wife according to the Sharee’ah in the divorce?

Was Imam 1 correct when he said that when I signed the civil marriage certificate during my nikah ceremony, I implicitly agreed to relinquish disputes to the Canadian Family Law to dictate the terms of the divorce over what the Sharee’ah allows? Is there any validity to this argument given that my intention was to only document the marriage in my province?

Is my wife correct that it is Islamically permissible for her to use the Canadian Family Law to take more than what the Sharee’ah allows her to take from me or which I do not give freely?

Islamically, are my assets like my home, accounts, investments, etc. which are mine in name and title count as being shared assets because she, for example, lived in my home with me, even though she did not financially contribute to these assets before or during the marriage?

Does the fact that she believes she suffered emotionally in the marriage give her a right to take from my assets what I am not prepared to give from my free will?

What of the issue of Mata’a? In Surah Baqarah, Ayah 241, Allah swt says:

“Reasonable provisions must be made for divorced women—a duty on those mindful of Allah.”

Can she claim Equalization of Assets based on this Ayah? Is 50% of my earned assets reasonable? How should this be understood in our case? My intention was to always give her something as a conciliation but if we can’t come to an agreement on what that is, can she resort to Canadian Family Law to take what she thinks is reasonable or Islamically does she still require my consent to take Mata’a?

If I am forced to sign a separation agreement even though I did not agree to the terms, but only signed it to avoid further expensive legal fees and divorce proceedings, does this count as proper consent for giving up my assets according to the Sharee’ah?

If she decides to take from my assets what Canadian Law allows in opposition to the Sharee’ah or what I am willing to give, how will that money benefit her in terms of Zakat, Sadaqah, Haj, and her Akhriah, etc.?

How does Allah swt want my conduct to be in this matter? Is Allah swt testing me with my wealth to see if I can part with it, and I should be accepting of her terms? Or does Allah swt want me to defend what he has given and made sacred for me from being violated?

How should I deal with her in this matter? Should I continue to try to appeal to her Islamic sensibilities, or should I not bother at this point?

I would really appreciate a prompt answer to these questions.

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Muhtaram Brother Shehzad,

You state that you have already discussed the issue with four imams in the Greater Toronto Area. Furthermore, you state that you have forwarded your query to eight other DarulIftaas.

Brother Shehzad, our DarulIftaa maintains the policy that when a Mustafti (questioner) contacts several DarulIftaas with regards to his query, then rather than answering his query, we advise him to choose one reliable DarulIftaa and abide by their issued ruling. The reason for this is that when a Mustafti (questioner) receives various answers from multiple DarulIftaas, then he may become confused and distressed. Therefore, one should abstain from this.

And Allah Ta’āla Knows Best

Hammad Ibn Ismail Jogiat

Student - Darul Iftaa

Cambridge, Ontario, Canada

Checked and Approved by,

Mufti Ebrahim Desai.

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