Amenity payments (mut‘ah)
I request a fatwa concerning mut‘ah expenses1: its amount, duration, the conditions of receiving it from the husband, its means of payment – bearing in mind that the marriage has lasted for three years – and showing the legal origins for this expense.
A divorcée whose valid marriage has been consummated, and whose husband has divorced her without her consent and where she is not its cause, deserves — in addition to her waiting period expenses — a mut‘ah payment equal to at least two years of her typical expenses. This amount takes into consideration the prosperity or poverty of the divorcee, the circumstances for the divorce, and the duration of marriage. It is permitted to allow the divorcee pay the mut‘ah in installments.
According to this text, the divorcée’s mut‘ah payment is a sum estimated to equal at least two years of expenses. It is owed to a divorcée whose valid marriage has been consummated, if her husband divorced her without her consent and when she is not the cause. This payment is in addition to her waiting period expenses.
The clarificatory notes concerning the mut‘ah payment include:
Since the legal norm is that the husband is the one who issues divorce, and that conventional law does not obligate an amenity payment for the divorcée after consummation has occurred, and it suffices her that she is entitled to the total sum of her marriage payment (Ar. mahr) and expenses during the divorce waiting period. But as for an amenity payment: it is recommended but is not required by the courts.
In this age the sense of honour has deteriorated and vanished – especially between husband and wife when the bonds of affection between them are broken; divorcées need assistance in dealing with the effects and financial difficulties of divorce, and divorce waiting period expenses do not meet their needs. The mut‘ah payment fulfils these and, indeed, strongly restrains the masses from rushing into divorce.
Since the principle behind prescribing mut‘ah is healing and reconciling the divorcée’s broken heart, and consoling her is part of the dignified behaviour recommended by the Sharia‘h – and it is as if it is based on what Allah the Almighty says: Make provision for them, the rich according to his means and the poor according to his - this is a duty for those who do good [2:236]. The mut‘ah payment being obligatory is the opinion of the ‘New’ Shāfi‘ī school, where the payment is obligatory for a divorcée whose marriage has been consummated, and where separation is not by her request nor by her fault.
This is one of Imām Ahmad’s opinions, and it is Ibn Taymiyyah’s preference. Its being obligatory is an opinion in the Zāhirī ‘Literalist’ school, and it is Imām Mālik’s opinion.
For the reasons listed above, Article 18 was placed to repeat observing guidelines set in the opinions of those Imāms, and it is left to the judge to assess the amount – apart from the previously stated - according to the circumstances of the divorce and to verify that the right is not being abused, and to put it in its proper place if it is. Its assessed amount shall not be less than two years of expenses. To facilitate its payment for the former husband, the article allows for him to pay the prescribed amount in installments.
The fact is that using the word ‘nafaqah’ (‘expenses’) to mean ‘mut‘ah’’ (‘amenity payment‘) is a common mistake. Rather, it is just called ‘mut‘ah’, since it is not even included among the various types of expenses. The proof that mut‘ah is obligatory – in addition to what was stated previously in the clarificatory notes – is what Allah the
Divorced women shall also have such maintenance as is considered fair: this is a duty for those who are mindful of God. [2:241]
The [words] “maintenance” and “duty” are mentioned to emphasise the obligation of the mut‘ah payment. This is in addition to the general phrasing in the verse leading to it being impermissible to restrict its ruling without evidence, and its application to all various types of divorcées: whether or not the marriage is consummated, and whether or not the marriage payment has been determined.
The majority of legists consider mut‘ah recommended due to the absence of it being ordered explicitly.
Since the clear outcome of examining the legal opinions concerning the lexical denotations of the Qur’anic texts that deal with the amenity payment shows that they differ over the scope of its application, and whether it is obligatory or recommended – due to the speculative nature of the textual denotations – it is permissible for the legal authority to exercise his personal opinion (Ar. ijtihād) in the matter, as a means for organising its rulings with legislation to clarify the basis of it being deserved and to detail the conditions for its being owed, with whatever will lead to uniform application.
The conditions for this amenity payment are that the divorcée’s marriage was consummated and valid; she did not consent to the divorce, nor was she its cause. All of these are encompassed within the general boundaries of the Shari‘ah, and do not contradict its lofty goals.
From this it is know that:
• The minimum duration for the amenity payment is two years, and it has no set maximum.
• The circumstances for the divorce, duration of the marriage, and the financial status of the husband are taken into consideration when determining the mut‘ah payment.
• Payment can be made in installments, provided it is known to the judge, and delivery must be made under his supervision.
This applies when the case has been presented to the courts. When the spouses have reached a settlement and their agreement is governed by contract law.