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How long is maintenance (wife and child support) provided for?

Answered according to Shafi'i Fiqh by Shafiifiqh.com

Question:

As-salamou 3alaykoum wa rahmatullah.

I would like to know how long the husband who divorces his wife had to give her maintenance (money) for her and their child(ren) ?

I know a sister who get married again recently and her ex-husband told her « now you get married I dont have to give you the maintenance ».

The sister has 2 children with her ex-husband, 1 girl (10 years old) and 1 boy (8 years old) and who is autistic (handicapped)…

Answer:

A man is obliged to support his children. The duty of providing child support is established in the Quran,

فإن أرضعن لكم فآتوهن أجورهن

“And, if they breastfeed for you, so then give them their wages.” (Surat al-Talaq 6)

The obligation to support one’s children remains in the instance that one’s ex-wife remarries. The obligation to financially support a child is considered when two specified conditions are fulfilled. They are:

1) That the child is financially in need, without any wealth of its own, and without the ability to earn a living. If the child is well off, then financial support is not obliged. (Muhadhdhab 2/166)

2) That what is spent on the child is from the excess of what one needs to support his own self. And, is from the excess of what one needs to support his own family, particularly his wife. (Mughni al-Muhtaj 5/185)

In the instance that there is a separation between a man and his wife, while they have children between them, then the woman is entitled to custody for the purpose of rearing the child [hadanah] by default until the children reach the age of tamyiz; and then, the children are given a choice of whom they prefer until the age of bulugh. (Fath al-Wahhab 2/122; Hashiyat ala al-Khatib 2/193) The age of tamyiz is generally around seven or eight years old. (Kifayat al-Akhyar 534) Consideration has also been given for a mentally impaired adult child. (Mughni al-Muhtaj 5/191)

If a male child selected to live under the custody of his mother, then it is mentioned that he would reside with her during the night and his father during the day. This is so the father may raise his son with a proper upbringing, including education and discipline. (Mughni al-Muhtaj 5/200; Rawdat al-Talibin 6/511) If a female child selected to live under the custody of her mother, then she may reside with her mother both day and night. As well, the child’s father has visitation rights. (Ibid) Decisions specific to the child’s upbringing are the father’s right. Furthermore, the expenses involved in the child’s upbringing are primarily the duty of the child’s father. (Rawdat al-Talibin 6/504)

If a male child selected to live under the custody of his father, then it is mentioned that the father may not prevent the child from visiting its mother. Also, the father may not prevent the mother from visiting the child. (Fath al-Aziz 10/543) If the child is a female, then the father may prevent it from visiting the mother. However, he may not prevent the mother from visiting the child. (Ibid)

A woman’s eligibility for custody is contingent on specified conditions. For instance:

1) She must be mentally competent [‘aql],

2) free [hurriyyah],

3) religious [din],

4) chaste [‘iffah],

5) trustworthy [amanah],

6) single [khuluww min zawaj],

7) and a resident [iqamah]. (Kifayat al-Akhyar 534)

If one of these conditions is absent, then she may be dispossessed of her right to custody. The Prophet SallAllahu alayhi wa sallam said,

أنت أحق به ما لم تنكحي

“You are most entitled to it so long as you do not remarry.” (Abu Dawud, Daraqutni, Bayhaqi, and Ahmad)

In a situation where a woman remarries, then she would be occupied with her new husband to the detriment of her children from a previous marriage. In light of the aforementioned hadith, custody may be given to another upon the mother’s remarrying. (Mughni al-Muhtaj 5/196)

The Shafiyyah have differed on who has the most right to custody when the mother has been dispossessed of that right. The sound view [al-sahih] is that after her is her mother. (Mughni al-Muhtaj 5/192; Rawdat al-Talibin 6/508) According to another view it is the father. (Rawdat al-Talibin 6/508) And, according to another view it is the Sultan. (Ibid) In a case where the mother and then the grandmother are ineligible, then other considerations would need to be made, and a reliable scholar should be sought for further advice.

In the instance that both the woman’s husband and the child’s father are agreeable to the child staying in the custody of its mother, then the mother may maintain her right to custody according to the soundest opinion [al-asahh]. (Kifayat al-Akhyar 535-36; Mughni al-Muhtaj 5/196) This stance is related from Ibn al-Rifah. (Kifayat al-Nabih 15/296) Baghawi related in his Tahdhib that even with the pleasure of the father, the mother’s custody right is forfeited. (Ibid) According to both, if the mother has remarried and the child’s father is displeased with the arrangement, then the mother’s custody right is forfeited. The text of Kifayat al-Nabih is as follows,

نعم لو رضى معه الأب بذلك سقط حق الجدة من الحضانة على الأصح فيكون عند الأم وقيل لا يسقط حق الجدة برضا الأب قاله في التهذيب

“In fact, if the father is pleased with it, so accordingly, the grandmother’s custody right is disregarded according to the soundest view. Hence, the child stays with its mother. It is also said [as an opposing opinion] that the grandmother’s right is not disregarded on account of the father’s approval; [Baghawi] mentioned it in his Tahdhib.”

A woman is not entitled to nafaqah [financial support] as a wife save from her current spouse. If she has custody of her ex-husband’s children, and is seeing to their upbringing, then she may be entitled to demand payment for this service.

When a woman has separated from her husband while between them is a suckling child, she may then demand payment for the breastfeeding at an average rate. In this situation the husband’s circumstance may vary. For instance, if he cannot find another to breastfeed at a lesser rate, then his ex-wife is the most entitled. (al-Hawi al-Kabir 11/497) If the father finds a woman willing to provide the service for free (or for less), then there are two opinions [qawlayn] of Imam Shafi. The first is that the father may utilize the services of the other woman. And, the second is that the mother is still entitled to breastfeed the child and to receive an average wage for her service. This is also the view of Imam Muzani. (Ibid) Supporting this view is the statement of Allah the Exalted,

فإن أرضعن لكم فآتوهن أجورهن

“And, if they breastfeed for you, so then give them their wages.” (Surat al-Talaq 6)

The relied-upon view [qawl azhar] is the first opinion. (Mughni al-Muhtaj 5/187) Hence, if the mother requests an average wage, then she is entitled to it, unless the father finds someone to provide the service for less. (Ibid) Supporting this view is the statement of Allah the Exalted,

وإن أردتم أن تسترضعوا أولادكم فلا جناح عليكم

“And, if you desire to seek wet-nurses for your children, so then there is no sin upon you.” (Surat al-Baqarah 233)

A woman is entitled to seek a wage for raising the children [hadanah] similar to breastfeeding [irda]; however, she may not seek a payment for past services. Bujayrimi mentioned (Hashiyat ala al-Khatib 2/194),

ولها أن تطلب عليها أجرة كما لها أن تطلبها للإرضاع فإن أحضنت أو أرضعت مدة من غير طلب أجرة لم تستحق

“And, to her is that she may request upon it a wage, like what is to her that she requests a wage for breastfeeding. Then, if she rears the child or breastfeeds for a period of time without requesting any payment, then she is not entitled.”

In regards to the nafaqah of a divorcee in her waiting period, it should be noted that a divorcee may be in one of two situations:

1) A revocable divorce or,

2) An irrevocable divorce.

In the instance that the divorce is revocable the jurists agree that she is entitled to receive financial support, clothing, and domicile. (Mughni al-Muhtaj 5/174; Tuhfat al-Muhtaj 8/333)

When the divorce is irrevocable, then the divorcee is considered in two possible situations. She may be:

1) Pregnant or,

2) Not pregnant.

In the instance that the divorce is irrevocable and the woman is pregnant, then she must be financially supported and provided with clothing and domicile for the duration of her waiting period. (Mughni al-Muhtaj 5/174) The waiting period of a pregnant woman is the duration of pregnancy ending with birth. (Ibid, 5/84)

When the divorce is irrevocable and the woman is not pregnant, then the jurists differ. According to the Shafi School she is entitled to be provided with a domicile until her waiting period expires; however, she is not entitled to financial support. (Mughni al-Muhtaj 5/174) According to the Hanafi School she is entitled to both domicile and financial support. (Badai al-Sanai 4/16) And, according to the Hanbali School she is not entitled to either. (Insaf 9/361)

In conclusion, one is obliged to support his ex-wife during her waiting period. The extent of his support depends on the situation. If the divorce is revocable, then financial support, clothing, and domicile are due. If irrevocable and she is pregnant, then financial support, clothing, and domicile are due. If irrevocable and she is not pregnant, then only domicile is due. Also, a father is obliged to support his children, subject to the conditions mentioned above. One’s support of his children is not contingent on his ex-wife or any financial obligation that he may have to their mother. A woman may be entitled to demand payment for breastfeeding and rearing his children.

In the case of a woman who has remarried, the father’s approval of his children remaining with their mother is necessary. Yet, the father may exercise his right and disapprove. If a father was to approve of his children staying with his ex-wife and her new husband, and then additionally agrees to pay the mother a wage for her looking after the children, then that would be at his own volition.

When all relevant conditions are met, one’s obligation to pay for his children’s expenses still stands. In fact, it is obligatory to seek employment in order to provide child support. (Kifayat al-Akhyar 525; Mughni al-Muhtaj 5/185) Still, one is not necessarily obliged to provide child support through the intermediate person of his ex-wife.

Allah knows best.

Shafiifiqh.com Fatwa Dept.

This answer was collected from Shafiifiqh.com which was a repository of Islamic answers as per the Shafi’i madhhab. The website no longer functions. At its peak, many ‘ulama were involved with the site including Shaykh Mawlana Taha Karaan, Shaykh Abdul-Fattah ibn Abdullah, and Shaykh AbdurRagman Khan.

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