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Islamically, what was my ex-ex-husband’s financial responsibility to our children and I?

Answered according to Hanafi Fiqh by Fatwa.ca

Question:

Islamically, what was my ex-ex-husband’s financial responsibility to our children and I?

The money I was receiving from the government was on the basis that I was a single mom (which I was not). I have no way to accurately determine what this amount would have been over the years had we registered the marriage. It would have been way less though because my ex-husband did work at a proper job for the first 4-5 years of the marriage and had income he showed on taxes.

How do I factor in what he owes me based on the fact that he should’ve covered all my food, shelter and clothing in the time we lived together. Also, it should be noted that I worked 6/10 years in this relationship and earned money which I put into the house, kids etc. What would be a fair way to calculate all of this?

Custody

I would like to discuss joint custody. I am willing to make certain compromises for the sake of the emotional and mental wellbeing of the children, provided that my ex-husband is willing to meet me halfway with it.

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ʿalaykum wa-rahmatullāhi wa-barakātuh.

Before tackling your question, let us go over some basic rules surrounding maintenance and custody of the children.

Who holds the custody in case of divorce?

  • There is scope for mutually deciding on custody for both husband and wife.
  • Mother has right for custody of a son until the age of seven (This is the time a child normally undertakes to become self-conscious to take care of his living such as eating, drinking, self-grooming etc.)
  • Mother has custody for a daughter until the age of nine (This is representative of minimum age of puberty whereby she should have learnt all her basic grooming, hygiene and tarbiyah from the mother)

After the specified ages the custody transfers over to the father. This is in view of what is best for the tarbiyyah at this stage of life for the children.

Mother may lose custody if one of the following were to happen:

  • leaves Islam or adopts another religion
  • openly does actions of fuhush (vulgarity) etc. (not suitable for upbringing of children)
  • negligence towards tarbiyah which affects the Islamic upbringing.
  • she demands payment for the child’s upbringing when she is employing a nanny.

If the mother loses her custody due to any of the reason mentioned before the children reach the age seven (for male) or nine (for female) then custody will have its own specific sequence, preferring women-folk among the relatives over the father.

Maintenance (Nafaqah)

Nafaqah is of two categories when it comes to family life:

  1. Nafaqah towards the wife
  2. Nafaqah towards close relatives (al-aqarib) like children etc.

1. Nafaqah towards the wife:

A husband is responsible for average level of maintenance towards his wife during their marriage. If they have a divorce, then the husband is also responsible for nafaqah for the duration of ʿiddah. Either the same averages for maintenance can be followed as were done before divorce, or they may revise it with mutual discussion. When we say “husband’s responsibility” it means that the husband can be sought for this right, and the wife can even take the matter to court (Qādī) to be given her nafaqah.

However, this responsibility of nafaqah towards wife does not automatically becomes a liability (as in debt) except when it is established

  1. either by Qādī or
  2. through mutual decisioning.

Hence if the husband and wife have mutually decided between themselves, based on their customary living style, that the husband will be liable to pay $x amount per day or per month for the nafaqah, then that amount would become binding upon the husband. Similarly, if at some time either due to dispute or by way of administrative management, the matter was taken to a Qādī who sanctioned a particular amount per month upon the husband as the nafaqah, then this will also become binding upon the husband.

Now if the husband does not fulfil his liability and pay the wife that amount of nafaqah, he will accrue a debt towards the wife. Even after years of non-payment, the wife may take the husband to task for this nafaqah as a debt, and the husband will be responsible for it in ākhirah, just as any other unpaid debt.

However, in absence of such arrangement or in absence of a verdict from a Qādī, if the wife did not seek her nafaqah in all those past years and now the time has elapsed, she may not hold the husband liable to pay her past-nafaqah amount. [1]

2. Nafaqah towards the children:

Husband is responsible for maintenance (nafaqah) of their children for the entire time regardless of the custody of the children. This responsibility is til the age of a male child’s bulūgh (adulthood) and nikah (marriage) for a female. This nafaqah is wajib al-kifaya, which means that if the need if fulfilled by someone other than the father, then the wujūb (compulsion) is lifted from the husband. [2]

Similarly, the husband must provide shelter (suknā) for the children during this time if the mother is not able to do so. It must be kept in mind that this suknā is being provided for the children, and the mother utilizes the benefit of same shelter.

The right to seek the nafaqah towards expenses on behalf of children is for the fulfilment of those responsibilities of the child, and at the time when those liabilities occur. This means:

  • that the wife may not seek nafaqah on behalf of children and then use it for her own expenses.
  • she should seek this nafaqah when it is needed and cannot accrue it for future.

If at that time the expenses were not sought from the husband and the time has passed, the need of the child for those expenses has also passed. Hence, now it is not possible to hold the husband liable for past-liabilities. [3]

In the case where at the time of divorce husband and wife had mutually agreed upon nafaqah for the children for the husband to pay, but thereafter the wife dispensed upon the children from her own money, then this will become a loan upon the husband towards the wife. [4]

Calculation for Nafaqah (Maintenance)

In principle, nafaqah includes food, shelter and clothing towards the wife or the children. [5]

Calculation for this is based on urf (custom) of what is average for the couple and their family life-style. [6]

Living in Canada, and depending on the lifestyle, an average level of expenses can be determined. This average will be the mid point between the wife’s life-style and that of the husband’s. While the books do not mention other essential expenses like electricity and heating bills, it is in concordance with objectives that they will be included in monthly expense as well.

In regards to nafaqah calculation towards children, the idea remains the same that average reasonable amount must be stipulated for the general upbringing of the child. While this can be ascertained from the financial practice of their past, it should still be discussed at the time of divorce for the betterment of the children. In absence of such indexes from one’s own living, it is acceptable to utilize government provided figures for child support.

It should also be kept in mind that if the child has some of its own money, then the calculations of child support should first deduct from the child’s money, before imposing an obligation upon the father.

Your Queries:

1. A husband’s financial responsibility towards the wife during marriage and ʿiddah is nafaqah which includes base food, clothing and shelter. In our times, this would include the essential bills if the wife is living separately. If the husband provides all these amenities, then scholars mention that it is only advisable that some additional pocket money be given as well.

2. Similarly, the husband’s financial responsibility towards children includes base amenities mentioned above. These responsibilities are not confined to monetary, rather expenses drawn from taking care of the family. This means that if the husband provides the base amenities in kind (clothing, food etc.), and not cash monies, then his duty will be fulfilled.

3. It was incorrect and deceptive of you to present yourself as a single mother. Canadian government provides child benefits for married couples as well as for common law partners. Nonetheless, as mentioned in the details, if there is a third party providing financial assistance towards children nafaqah then that fulfils the wajib al kifaya on behalf of the husband as well, and the husband will not be held liable for those amounts.

4. With regards to the finances for the years that have already passed, please read through the details provided above. If no mutual agreement was achieved about nafaqah prior to those years, the nafaqah cannot be claimed after the passing of the time.

5. The money which you earned through your employment throughout the years belonged to you. In absence of any prior mutual agreement about the nafaqah, your spending upon the family is from your own tīb al nafs (good heartedness) and does not constitute a debt upon the husband.

6. Please read through the custody details provided above. You should strive from your end to make your approach towards custody and financial matters of nafaqah in concordance with Islamic dictates. Hence, I urge you to make a mutually consensual agreement on stipulation of nafaqah amounts as soon as possible so that sharʾī responsibility upon the husband may be established.

7. Please keep in mind that if the husband fails to pay the nafaqah, and does not heed to the religious advice, then as a final resort you may use Canadian legal avenues to recover those nafaqah However, it will be your religious dictate that you do not extort more than what has been sharʾan established upon him through the mutual agreement.

And Allah Ta’āla Knows Best

Mufti Faisal bin Abdul Hameed al-Mahmudi
www.fatwa.ca

[1]

المبسوط للسرخسي (5/ 184)

ولو خاصمته امرأته في نفقة ما مضى من الزمان قبل أن يفرض القاضي عليه لها النفقة لم يكن لها شيء من ذلك عندنا. … وأصل المسألة أن النفقة لا تصير دينا إلا بقضاء القاضي، أو التراضي عندنا.

بدائع الصنائع في ترتيب الشرائع (4/ 28)
وأما الثالث وهو بيان حكم صيرورة هذه النفقة دينا في ذمة الزوج فنقول إذا فرض القاضي لها نفقة كل شهر أو تراضيا على ذلك ثم منعها الزوج قبل ذلك أشهرا غائبا كان أو حاضرا فلها أن تطالبه بنفقة ما مضى؛لأنها صارت دينا بالفرض أو التراضي؛ صارت في استحقاق المطالبة بها كسائر الديون

[2]  

بدائع الصنائع في ترتيب الشرائع (4/ 28)

لأن وجوبها للكفاية وقد حصلت الكفاية فيما مضى فلا يبقى الواجب كما لو استغنى بماله

[3]  

حاشية ابن عابدين (رد المحتار) علی الدر المختار  (3/ 594)

ثم اعلم أن المراد بالنفقة نفقة الزوجة، بخلاف نفقة القريب فإنها لا تصير دينا ولو بعد القضاء والرضا، حتى لو مضت مدة بعدهما تسقط

بدائع الصنائع في ترتيب الشرائع (4/ 28)

بخلاف نفقة الأقارب إذا مضت المدة ولم تؤخذ أنها تسقط؛ لأنها لا تصير دينا رأسا؛ لأن وجوبها للكفاية وقد حصلت الكفاية فيما مضى فلا يبقى الواجب كما لو استغنى بماله

[4]  

بدائع الصنائع في ترتيب الشرائع (4/ 29)

ولو أنفقت من مالها بعد الفرض أو التراضي لها أن ترجع على الزوج؛ لأن النفقة صارت دينا عليه

[5]

الدر المختار (3/ 572)

وشرعا: (هي الطعام والكسوة والسكنى) وعرفا هي: الطعام (ونفقة الغير تجب على الغير بأسباب ثلاثة: زوجية، وقرابة، وملك) بدأ بالأول لمناسبة ما مر أو؛ لأنها أصل الولد (فتجب للزوجة) بنكاح صحيح، فلو بان فساده أو بطلانه رجع بما أخذته من النفقة بحر (على زوجها) ؛ لأنها جزاء الاحتباس، وكل محبوس لمنفعة غيره يلزمه نفقته كمفت وقاض ووصي

[6]

البحر الرائق شرح كنز الدقائق ومنحة الخالق وتكملة الطوري (4/ 190)

واتفقوا على وجوب نفقة الموسرين إذا كانا موسرين وعلى نفقة المعسرين إذا كانا معسرين، وإنما الاختلاف فيما إذا كان أحدهما موسرا والآخر معسرا فعلى ظاهر الرواية الاعتبار لحال الرجل فإن كان موسرا وهي معسرة تجب عليه نفقة الموسرين ولا يجب عليه أن يطعمها مما يأكل، لكن قال مشايخنا يستحب له أن يؤاكلها؛ لأنه مأمور بحسن العشرة معها وذا في أن يؤاكلها لتكون نفقتها ونفقته سواء وإن كان معسرا وهي موسرة وجب عليه نفقة المعسرين؛ لأنها لما تزوجت معسرا فقد رضيت بنفقة المعسرين، وأما على المفتى به فتجب نفقة الوسط في المسألتين وهي فوق نفقة المعسرة ودون نفقة الموسرة

This answer was collected from Fatwa.ca, which is a fatwa portal operated by Mufti Faisal al Mahmudi from Canada. 

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