The subject of this study is post-divorce financial support and its affinity to Mut‘at-al-ṭalāq, as we know it in Islamic jurisprudence. The target audience is Muslim jurists who would appreciate the fairness and justice of Islamic Sharī‘ah law for its care for women in general and for divorced Muslim women in particular. The jurist would strongly uphold the right of divorcee women as illustrated in the Holy Qur’an, applied by the Prophet (pbuh) and eventually join hands to develop an effective approach for reviving such Qur’anic and prophetic injunctions pertaining to post-divorce financial support, for the protection of contemporary divorced Muslim women in general, and in the Western hemisphere in particular.

The predominant scholastic understanding and prevailing judicial applications in the Muslim world of today indicate that women are not entitled to any post-divorce financial support (Mut‘at-al-ṭalāq )and property settlement, or any wealth of their household that accumulated during the marital course, under the pretext that these women have already exhausted their shares by being sheltered, clothed, and fed by their husbands during the period of their marital life. They conclude by saying that those women are only entitled to three months of spousal support during their religiously prescribed waiting period, known as ‘iddat al-ṭalāq.

As a former judge of Sharī‘ah courts in Sudan, as a former resident imam of one of the largest Islamic centers in the U.S., as an Islamic adjudicator and arbitrator for the Muslim community for more than twenty years in North America, I have encountered and entertained numerous cases of this nature. In addition, I have seen the injustices imposed against divorced women and their suffering due to neglect of the Islamic rules of post-divorce financial support (Mut‘at-al-ṭalāq ).This un-Islamic and inhumane treatment of divorcee Muslim women triggered my attention and motivated my conscience to address thistopic.

Althoughthe Qur’an has addressed this topic in its several verses and the practical Sunnah confirmed its application during the lifetime of the Prophet, his companions, and the successors, this subject matter has become one of the most marginalized and neglected parts of our Islamic transactional jurisprudence.[1]

Mut’ah is an Arabic term that linguistically, means enjoyment and happiness as opposed to gloominess, depression, and grief. Idiomatically, it is the post-divorce financial support, or post-divorce payment to be made by the divorcer to his divorcee, in an attempt to uplift her self-esteem and tone down the negative impact of the social humiliation associated with the term “divorced woman.”

Although this definition reflects the psychological component of the aftermath of the divorce, it does not inclusively cover the fact that Mut‘at-al-ṭalāq is first the right of the divorcee from the accumulated wealth of the household whereof she was part and a full partner in ownership. In accordance with Islamic Shari’ah, Mut‘at-al-ṭalāq is one of the three fixed rights that are due to women beside their owed shares of inheritance: the dowry at the time of the marriage performance; the maintenance throughout the course of the marriage; the Mut‘at-al-ṭalāq after the occurrence of the irrevocable divorce[2]; and their allocated shares of inheritance upon the death of the husband.

 

Mut‘at-al-ṭalāq is profoundly rooted in the divine scripture as clearly illustrated in the following Qur’anic verses:

 

There is no blame on you if you divorce women before  consummation or the fixation of their dowry; but bestow on them Mut‘at-al-ṭalāq , the wealthy according to his means and the poor according to his means; (such Mut‘at of a reasonable amount is due from those who wish to do the right thing (i.e.Mut‘at-al-ṭalāq ).[3]

 

“And for divorced women is a suitable Mut‘at. This is a duty on the righteous.”[4]

 

O, Prophet, say to your wives: if you desire the life of this world and its glitter, then come! I will make a provision for you and set you free in a handsome manner (i.e. divorce you all).[5]

 

O you who believe! When you marry believing women and then divorce them before you touched them, no prescribed waiting period should be imposed on them, but grant them the Mut‘at and set them free in a handsome manner.[6]

 

 

It is remarkable that most of the existing commentaries of the Qur’an are mostly identical, not only in terms of meaning and concepts but also on many occasions in the words they use.

 

Al-Imam al-Ṭabarī is among the oldest Qur’anic commentators. In his commentary on the foregoing Qur’anic verses, he strongly advocated for women’s rights in the Mut‘at. He sturdily defended his belief that payment of Mut‘at-al-ṭalāq to a divorced woman is an obligation on the husband by the virtue of the aforementioned Qur’anic verses. And after reporting different opinions of the jurists on this matter, he said, “ I believe what represents the truth among all of the above jurists’ arguments is the argument of those who say that post-divorce Mut‘at is mandatory for all divorced women, because Allah has said: ‘For all divorced women Mut‘at as a duty on the muttaqīn.”

Al-Ṭabarī was an authoritative jurist, and not passive like many other jurists who just reiterated what had been reported by others. As an independent jurist he expressed his viewpoints intellectually, honestly, rationally, and even sometimes aggressively, refuting the faulty arguments of his opponents. He was quoted in his Tafsīr as saying:

 

It is my conviction that post-divorce Mut‘at is an obligatory payment on the husband who divorced his wife, and he is liable to pay her Mut‘at-al-ṭalāq just like he is liable to pay her due dowry, and he will never be exonerated from such obligation until he pays her or her proxies or heirs, and that Mut‘at-al-ṭalāq is like other debts that are due to her, and the husband is subject to incarceration and his property can be sold for not paying his divorced wife her post-divorce due Mut‘at.[8]  

 

Mohammad b Ahmed al-Ansārī[9] al-Qurṭubī is a well-known commentator of the Holy Qur’an. His commentary on the Quranic verses in question is among the more instructive and demonstrates his independent opinion regarding the post-divorce Mut‘at. Although a Maliki School of Jurisprudence disciple, like other North West African jurists, his independent conscience enabled him to depart from prevailing fetters of the Mālikī School with regard to women’s post- divorce right to Mut‘at. According to Imam Malik, the post-divorce Mut‘at is not mandatory but rather is just recommendable. Al Qurṭubī did not endorse Imām Mālik in this particular matter and audaciouslydeclared his dissatisfaction on the point made by Mālik and other jurists of the Mālikī School.

Al-Qurṭubī quoted Abdullah ibn Omar, ‘Alī ibn Abi Ṭālib, Sa‘īd ibn Jubair’, and other prominent scholars of the successors who hold that the rule of Mut‘at-al-ṭalāq came in the form of a command and therefore is a binding rule (wājib), although Mālik, Judge Shuraiḥ, and other jurists hold it as a non-binding Islamic rule, saying it is just a recommendable rule. Al-Qurṭubī continued to say that the supporters’ argument is based on the wording of Qur’anic verse as an imperative and binding command from Allah, while the second party did not deny that the word is a command, but based its understanding on the recipient of the said command, claiming the verse addresses the muḥsinīn and the muttaqīn only, so it is bindingonly upon the muḥsinīn (righteous people) and the muttaqīn (pious people of means). Further, they said that if Mut‘at-al-ṭalāq were a binding Islamic rule, it would have been imposed on all people, not only on righteous and pious people.

After discussing the above conflicting opinions, al-Qurṭubī strongly endorsed the first party’s opinion and determination. He added that the second party’s argument is indefensible, because the contextual indication and the understanding thereof show the command of Mut‘at al-ṭalāq referred to the divorcees, and the preposition letter (lām) in the word (للمطلقات ) is a possessive letter and an indicative element that gives divorced women an undeniable right to their post-divorce financial shares.

Furthermore, al-Qurṭubī pointed out that muḥsinīn and muttaqīn emphasize and further assure the right of divorced women to post-divorce Mut‘at, because being a muḥsin and a muttaqī is a duty on all Muslims. He then addressed jurist opinions on the eligibility of divorced women. He stated that in accordance with Ibn Abbās, Ibn Omar, Jābir b Zaid, al-Ḥasan, ‘Atā’ ibn Rabāḥ, Ishāq, Imām al-Shāfi‘ī, Imam Aḥmed, and opinion adherent jurists, Mut‘at-al-ṭalāq is mandatory only for the divorced woman who has been divorced before the consummation of the marriage and whose dowry was not fixed, and that it is only recommendable for all other divorcees.[10]

 

Abū al-Fidā’ Ismail ibn Kathīr,[11] in addition to what he shares with other commentators, added some considerable points in his famous Tafsīr. First, he defined Mut‘at-al-ṭalāq by saying that Mut‘at is something paid by the husband to his divorced wife, according to the husband’s means, so as to compensate the divorced woman for what she lost because of the divorce. Then, he quoted Abdullah ibn ‘Abbās who determined the amount ofMut‘at-al-ṭalāq, saying, “…If the husband is wealthy, he should compensate his divorced wife by providing her with a servant or the like, but if he is of limited resources then he should provide her with four pieces of clothing.” He defined the clothing by quoting al-Shābī, one of the successor jurists, who determined the amount of Mut‘at al-talaaq as “a vest, a head scarf, a blanket, and a dress.” Note that he made no mention of a pair of shoes and underwear, which would raise the number of pieces to seven or eight items. Keep in mind that in our present time women need at least two sets of each item.

 

            Imām al-Fakhr al-Rāzī [12] is one of the prominent jurists of his time and he was obviously not in favor of the opinion of the jurists who believe that the Mut‘at-al-ṭalāq is not an optional matter but is fittingly mandatory. According to his understanding, both Imām Abū Ḥanīfa and Imam al-Shāfi‘ī support the opinion that Mut‘at-al-ṭalāq is obligatory on the husband. His comments on verse 2:236 could summarize his inclination to consider divorced women of three categories:

 

·         Women who are divorced before the fixation of their dowry and before the consummation of their marriages. For them the Mut‘at is mandatory on their divorcing husbands.

·         Women who are divorced after the fixation of their dowry and before the consummation of their marriages. For them there will be no Mut‘at, but they are entitled to 50 percent of the fixed dowry.

·         Women who are divorced after the fixation of their dowries and consummation of their marriages. For them Mut‘at-al-ṭalāq is mandatory.  

 

Imām al- Rāzī quoted Abdullah ibn Omar as saying that Mut‘at-al-ṭalāqis prescribed for all divorced women. Al-Rāzī did not hesitate to support his argument by the same points made by al-Qurṭubī, as mentioned above, then added that the preposition letter ‘Alā in Arabic indicates that the matter in question is neither optional nor recommendable, but rather is obligatory.[13]

 

 

            Tafsīr al-Manār by al-Shaikh Rashīd Ridā[16]of the twentieth century discussed and impressively defended the enforcement of post-divorce support. He supports the scholars who endorsed the eligibility and the right of divorced women for post-divorce support as a mandatory duty on the divorcing husband.[17]

 

            There is no doubt that translators of Qur’anic language have done a tremendous service for people in their understanding of the meaning of the Qur’an. The translators’ role is to help those who cannot understand the original language of the Qur’an through which it was revealed.

            Translation alone would not convey the exact meaning of some Qur’anic terms. Therefore, speakers of the Qur'anic language, the translators of Qur’an, and the end users of the translations should join hands in helping each other to understand the exact intended meaning of certain Qur’anic terms and terminologies. This should occur preferably before the final stage and before the publication of the translation, in order to avoid some vital terminological mistakes, particularly when the meaning of the word determines the rights of a human being, in which case the accuracy of the translation becomes crucially imperative. 

For instance, most Qur’anic translators translated the term Mut‘at as a gift. Some translators have taken this erroneous translation from the earlier translators and the latter translators continued to quote them, apparently, out of respect and good faith.

We know there are Five Rules of Islamic Law: ḥalāl (lawful or permitted); ḥarām (unlawful or not permitted); mundūb (Sunnah) and makrūh (disapproved but lawful);and mubāḥ (permissible). According to Islamic law, “gift” does not fit in the first or the third category. Rather, it is classified under the last category, mubāḥ. However, Muslim jurists have determined that a gift is not a mandatory transaction, but rather a social non-binding transaction, unless and until it is fully acquired by the recipient, when it would take another form of rules. Moreover, in accordance with the Islamic Sharī’ah Law, a gift has its own jurisprudential rules that are completely different from that of post-divorce financial support.[18]

 

 

 

 

Muslim jurists have two different opinions on post-divorce financial support. Some jurists say it is mandatory (wājib), in the first category of Islamic rulings. Some say it is mundūb (recommendable), in the second category of rulings. However, in terms of practicality, Muslim jurists did not hold post-divorce support as obligatory. Even those who believe it is a mandatory command from Allah do not advocate it, much less apply it. The principle is almost totally ignored, and buried under the prevailing rubbles of custom.

Ninety percent or more of our revered jurisprudential resources are either written down or traced back to the second century after the Hijrah -- more than twelve hundred years ago --  during the time of Imam Abū Ḥanīfah,[22] Imām Mālik, and Imam al-Shāfi ‘ī.[23] Until now in some Muslim countries or in remote isolated villages, it has been customary that the divorced woman, along with her children, are returned back to her family home, where they would be accommodated and financially supported by her extended family.

 

 

Imam Mālik [29] and the majority of his disciples say that post-divorce support is not mandatory at all but is instead recommendable for all divorced women except the ones with fixed dowries and who were divorced before the consummation of the marriage. Women with a fixed dowry are not entitled to Mut‘at-al-ṭalāq .[30]  

The argument provided by the Mālikī school to justify the dispensability of post-divorce support is based on the words muḥsinīn and muttaqīn, which say Mut‘at is mandatory only for these two categories of people. The best repudiation of the Maliki school position is that of Imām al-Qurṭubī, a Mālikī jurist, who truly represented the Mālikī school in his reply as we have advanced in this study. However, al-Qurṭubī’s denial of the Mālikī school position faced a defense in favor of the said position by Imām Shams al-Dīn al-Dusūqī, in his book Ḥāshyat al-Dusūqī on the commentary of al-Shaikh Aḥmed al-Dardīr, with commentary of al-Shaikh ‘Olaish.[31]

 

Al-Shāfi‘ī’s recent and most publicly publicized opinion holds that any divorced woman who is not the direct reason for the divorce is entitled to post-divorce support.[32] Although al-Shāfi‘ī’s opinion on this matter has been reputed as the most balanced among the Islamic jurisprudential schools, he did not offer a blank check to all divorcee women. He found that divorcee women fall into two categories. Those who are eligible for post-divorce financial support fall under list A, below, as opposed to list B.

 

 

Furthermore, like all other human life paradigms, mutual benefit is the central point of human interactions, which is true even in the relations between parents and their children as suggested in the Qur’an: “You know not whether your parents or your children are nearest to you in benefit.”[34] As such, marriage in Islam is based on benefit reciprocity. Spouses should know that a useless person in the family and in the community could be tolerated only for a limited period before people start to feel that his very existence has turned burdensome.

However, the husband desires to have children and enjoy a physical and personal life, but due to chronic illness or the like, the wife cannot bear children or falls short physically, husbands should not divorce such wives for this reason. Divorcing a wife due to what is out of her control is a gross betrayal of the matrimonial bond. For the best interest of the children and extended family, husbands should remain married. At the same time, women with such chronic health disorders should not deprive their husbands of taking another wife. Not doing so would otherwise furnish a ground for losing their post-divorce financial support .

Husbands and wives who are undergoing this kind of trial should apply the wisdom of Sowdah bit Zamah, the wife of the Prophet. When she grew old she lost her fitness and beauty, and recognized the norm that Allah created in the nature of men, so she entered into a deal with her husband to maintain their marriage, and in exchange, she handed over her spousal rights to ‘Āishah, the youngest wife of the Prophet. Ibn Ḥajar al-‘askalānī said that a Qur’anic verse[35]was revealed to address such type of family disputes. “If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves, and such settlement is best, even though men’s’ souls are swayed by greed, but if you do good and practice self-restraint, Allah is well-acquainted with all that you do.”[36]

The Ḥambalī jurisprudential position towards post-divorce support is almost the same as those of the Ḥanafī and Shafi‘ī schools.[38]highlighted the consensus between the three major Islamic jurisprudential schools as he pointed out the similarities among them.[39] In his famous Majmū‘ Fatawā, Shaikh-ul-Islām Imām ibn Taymyah said that Abdullah ibn Omar, Imam al-Shāfi‘ī, and Imām Aḥmad ibn Ḥambal all consider post-divorce support (Mut‘at) to be mandatory for every divorced woman, except those who were divorced after the fixation of dowry but before consummation of the marriage. For such divorcees with a fixed dower, no post-divorce support is required. Abdu-Rahmān al-‘āṣimī al-Najdī al-Ḥambalī

In contrast, Imam ibn Taymiyah inserted an excellent point that as the Islamic Sharī’ah considers a marriage contract the reason for the prerogative of acquiring bridal dowry mahr al nikāh, likewise divorce is the reason for the prerogative of acquiring post-divorce supportMut‘at-al-ṭalāq . He said that married women whose dower was not fixed are entitled to a mahr similar to that of her peers based on the marriage contract, and such prerogative is to be delivered even after the death of the husband. Then he quoted the case of Brou’ bint Wāshiq,whose husband died before her dower was fixed, and the Prophet awarded her the mahr of her peers.[40] After discussing the opponents’ arguments against post-divorce support (Mut‘at), he reported the other opinion of Imam Ahmad Ibn Hanbal and said that the accurate opinion reported from Imam Aḥmad is what was previously quoted, which described post-divorce support as mandatory for each divorced woman.[41]  

 

 

           In addition to using Ibn Abbās ḥadīth as supportive evidence, Ibn Kathīr made two important points that represent an important breakthrough in determining post-divorce financial support in kind and in cash, taking into consideration that Ibn Kathīr lived in the seventh century after the Hijrah -- 656 years ago -- when owning a servant was tantamount to owning a house in our time. Therefore, if Ibn Kathīr believes that a divorced woman whose husband is wealthy is entitled to a servant who would serve her and her dependents for the rest of her life and be inherited by her children after her death, then we can easily deduce that in our modern time a divorced woman whose husband is wealthy should be entitled to no less than a house to shelter her and her dependents for the rest of her life and be inherited by her children after her death.[44]

           In the process of determining the financial support, one should not ignore the financial contribution of the divorced woman to the household and her contribution into the accumulated assets during the marital course. Women’s financial contributions to the household expenditures should be taken into consideration, besides their help in the husband's business, their care for the husband and the parties’ children, household work such as cleaning, cooking, laundry, and dish washing, et cetera.

           The prevailing western socio-economical life style, which includes Muslim communities as part of the American structural fabric, is based on family cooperation among the adult members in the household. Often, both husband and wife work from nine to five. In some cases, one or both of them may have more than one job and usually a joint bank account. Therefore, they share the expenses of life and equally enjoy the surplus of their earnings. If their marital life ends for any reason, all the real and personal assets, in principle, shall be subjected to a communal division.

 

 

            We will now present some case study samples on issues related to post-divorce financial support and property settlement in Muslim communities in North America to illustrate the serious problems facing Muslim families in the West, and to support the most viable solution based on the Qur’an and Sunnah, both of which call for adherence to fairness and justice. The following two cases have been widely publicized among Muslims in America and in American media: a Muslim family case in Detroit, Michigan, adjudicated by the Sharī’ah Scholar Association of North America (SSANA), and a Muslim family case in Bethesda, Maryland, adjudicated by a courthouse in the State of Maryland.

 

The couple was married overseas and then migrated to the United States, where they lived and raised their children. Both husband and wife were medical doctors. They accumulated large wealth in cash and real estate, worth millions.

After some time, the husband proposed that his wife should quit practicing as a physician and stay home, to care for him and their children. She accepted the proposal and quit. Some years later, the husband wanted to divorce her for personal reasons. Once she learned his intention, she was disturbed but wanted to secure physical custody of the parties’ minor children and some post-divorce financial support. She thought about hiring a lawyer to help her in court, but the husband convinced her that resorting to American courts is against the Islamic Sharī’ah. He told her that an alternative to the court would adjudicate the matter in accordance with the Islamic Sharī‘ah in a way that would satisfy both of them. The parties willingly appeared before the Sharī‘ah Scholars Association of North America (SSANA) for an Islamic arbitration. The couple signed a prepared binding arbitration agreement.

The arbitration panel conducted all prerequisite legal procedures, including family history, the husband’s abusive attitude, annual business income, the best interest of the children, and so forth. The panel found the husband guilty of the following:

 

 

The panel rendered its judgment as follows:

 

 

Upon reading the verdict, the husband crumpled the paper before the panel, saying, “This is trash, this is not Islam.” He immediately called me and asked for my intervention, as I was the chairman of the Islamic Judiciary Council of SSANA. I advised him to settle the case with his wife outside the court through reconciliation, to facilitate my intervention. He rejected the idea and hired two lawyers to fight the case before the state court. He lost the case in Detroit and he asked his lawyers to appeal the verdict. While his lawyers pursued a lawsuit against SSANA’s judgment and against his wife, he went to Al-Azhar in Egypt and to Saudi Arabia to get a fatwa against the verdict, but failed.

I do not know what answers he got from Muslim scholars in Egypt and Saudi Arabia, but he lost the case before the state courts, as the trial court upheld our arbitrational judgment. The plaintiff’s lawyers filed at the special Appellate Court of Michigan, but I assume the lawyers advised him of the likelihood that the Appellate Court will uphold the Islamic arbitration ruling. Therefore, before the appellate court decided on the case, the plaintiff called me again requesting review of the verdict. I just reiterated the same recommendation as before. He did accept it this time, and it did work for him.

 

The court found the ṭalāq divorce of countries applying Islamic law, unless substantially modified, was contrary to the state’s public policy. The court declined to give ṭalāq, as presented in this case, any comity. The court found further that Pakistani statutes providing that property owned by the parties to a marriage follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicted with state laws where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus, the Pakistani statutes were found wholly in conflict with state public policy as expressed in its statutes, and the court afforded no comity to those Pakistani statutes.

Additionally, the husband was found to confer insufficient due process to his wife, by evading a divorce action begun in the state by rushing to the embassy of a country recognizing ṭalāq and, without prior notice to the wife, performing “I divorce thee…” three times and thus summarily terminating the marriage and depriving his wife of marital property. Accordingly, for this additional reason, the courts of Maryland did not recognize the ṭalāq divorce performed.

 

 

 

Due to the need to answer the above questions and more, Muslim jurists are called upon to heed this eminent emerging challenge to the fundamental principles of the Sharī’ah law on one hand and the application of justice and fairness on the other.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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