I am married my Muslims rights since 2002. My dad bought me a vacant land when I was young and he has now started building on it, but he wants this property kept in our family, meaning that if I die or a divorce happens between my husband and I, that property cannot be touched by my husband. The property is my name, I never changed my surname when I got married and never intended to, my husband understands that.
I understand my father is thinking about the future and trying to protect me and his grandsons, so he investing money into something which could easily be taken away from us, so he insists I get an ante nuptial asap!
Is this the only way? If it is, how do I go about it? Then I’d add that everything that is in my name is untouchable by my husband, before and after we get married in court.
Answer:
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
In South Africa, legally marriage is considered to be in Community of Property, unless one has an Ante-Nuptial Contract. Community of Property means that both the estates of the husband and wife are combined, and each then owns half.
If that were to occur, the husband would automatically become half owner in the fixed property referred to in the question.
The method of avoiding the community of property would be to enter into an Ante-Nuptial Contract, and register the marriage such. In this way the fixed property remains in the sole ownership of the wife. When getting married with an ante-nuptial contract, one also has to specify that the contract doesn’t include the accrual clause.
However, if the wife dies, the husband is entitled to his share of the property. This cannot be avoided, nor is it correct to design a scheme to deprive the husband of this share. Any scheme that would deprive the husband of his Shar’ee inheritance will be impermissible.
The Ante-Nuptial Contract would be the easiest route.
The Ante-Nuptial contract simply keeps the estates separate. It does not deal with death.
The issue of death should be covered by a will. By the wife having a Shar’ī will, this shall ensure that the husband gets his Shar’ī right.
And Allah Ta’āla Knows Best
Mufti Faraz Ibn Adam al-Mahmudi,
www.darulfiqh.com