The rights of a woman who was divorced on grounds of harm and the rights of minors
What are the rights of a woman who was divorced on grounds of harm after her marriage was consummated? What are the rights of the children in her custody?
It is established in Islamic law that a woman is entitled to the following:
- The full dowry if she is divorced after the marriage has been consummated. By virtue of the marriage contract, the dowry includes its deferred portion which becomes payable when a husband divorces his wife or upon either the husband's or wife's death, whichever occurs first.
- The household furniture, whether or not it is listed in the registry of furniture.
- The shabka (the jewelry presented by the groom to his bride) provided it is known or has been agreed upon by both parties that it constitutes the dowry or part of it.
- Waiting period expenses (nafaqet al-'idda) which is established by a woman continuing to live in the marital house during this time. The waiting period expenses cover all the expenses to which a wife is entitled. A judge determines the duration of a woman's waiting period based on her asseveration (concerning her menstrual cycle) provided the period does not exceed one year from the date of divorce. Egyptian law implements this based on the dominant opinion of scholars. Furthermore, the judge estimates the waiting period expenses according to what he deems suitable to the case before him.
- A woman is also entitled to receive alimony (nafaqet al-mut'a) provided she does not consent to the divorce and is not at fault (such as khul' or divorce in return for a woman waving her rights). It is prohibited for the husband to deliberately mistreat his wife to push her to ask for a divorce or waive her rights. Allah the Almighty says,Nor should ye treat them with harshness, that ye may take away part of the dower ye have given them. [An-Nisaa`: 19]
Islamic law has made the estimation of the sum of alimony dependent on the common practice [of a given country] and on the husband's financial capability. Allah the Almighty says,But bestow upon them (a suitable gift), the wealthy according to his means, and the poor according to his means;--a gift of reasonable amount is due from those who wish to do the right thing.[Al-Baqarah, 236]
For divorced women is a suitable gift this is a duty on the righteous. [Al-Baqarah: 241]
This is what is implemented by Egyptian courts. Article 18 (repeated) of decree law 25/1929 amended by law 100/1985 states:
A divorcée whose valid marriage has been consummated, and whose husband has divorced her without her consent and where she is not at fault, deserves — in addition to her waiting period expenses —alimony equal to at least two years expenses. The sum takes into consideration the prosperity or poverty of the husband, the circumstances of the divorce, and the duration of the marriage. It may be paid in installments.
The judge estimates the sum based on a wife's entitlement to marital and waiting period expenses for a period of not less than two years by taking into consideration the husband's financial status. This is based on the duration of the marriage, the circumstances of divorce and judicial discretion.
The rights consequent from a court decreed divorce on grounds of harm are exactly the same as those consequent to a divorce to which the husband consents. This is because a woman who resorts to the court for a divorce does so only to ward off the harm inflicted by her husband. Establishing this fact evidences that a wife reluctantly files for divorce to protect herself from harm. This demonstrates that she is not happy with the divorce and is therefore entitled to alimony.
If the couple decides to settle out of court, then they are to agree upon the sum of alimony. The prevailing practice concerning alimony is a minimum sum equal to one fourth of the husband's wages for 24 months. The duration of the waiting period expenses ranges from three months to one year depending upon the woman's asseveration of the duration of her menstrual cycle and on the husband's financial status as mentioned earlier.
It is established in Islamic law that the financial support of any children is obligatory upon the father and rests solely with him. This is because they are a part of him and because paying for the financial benefit of a child in need is tantamount to maintaining his life which a person must do for oneself and for his children. Therefore, the reason behind the obligation of child support is paternity. Allah the Almighty says,
… and clothing and maintenance must be borne by the father in a fair manner. [Al-Baqarah, 233]
From the above verse, it is deduced that Allah mentions fathers to demonstrate that the obligation is conditioned by paternity as mentioned in Sharh Fat-h Al-Qadeer (3/344). Since a father's obligation to provide for his child's mother is established then it is with greater reason for a father to provide for his child provided the latter does not have a ready source of money which can be used for his financial support.
Child support covers food and drink, clothing, suitable housing, household furnishings, and all other means of living. It is commensurate with the husband's financial means based on the words of the Messenger of Allah to Hind bint 'Utba, "Take what suffices you and your children with fairness." It is unjust for a well off father to pay the child support of a person who is poor and vice-versa. However, even a financially compromised father must pay child support that suffices his offspring so that a child would not be harmed on account of his father's financial status. Child support should also cover a child's education as this is necessary to form and prepare him for his religious and worldly life. It should also include a custodial salary. Child support belongs exclusively to the children and the custodial mother's authority extends only to receiving it; she is not entitled to waive her children's right to it or settle for less than a sufficient amount.
Allah the Almighty knows best.