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Q50 - After 12 years of marriage, I am separated with my wife almost a year, we are not divorced ye


Question # 050

I live in Toronto, Canada. We are married almost 12 years. My wife is the house maker. i have two kids. I am separated with my wife almost 12 months. We're not divorced yet. According to Canadian law, If In case of divorce total wealth including house is shared 50% between husband and wife. Further more, My wife says Islamic law says that we have to follow law of country in which we live. Based on this Islamic law and country law. she has asked me to give 50% from my total wealth including house whatever i earned in my life so far. Would you please explain me is this fair or not (Haram) ?

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

As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

May Allah (swt) reward you for your concern.


As Muslims, it is necessary to follow the law of our respective countries, provided that these laws do not oppose the laws of Islam (religious laws). For example, speed limits, obeying traffic symbols, etc will be necessary for a Muslim to follow.

However, if following a specific law of the land opposes Islamic necessary laws (Shariah), then to follow this specific law of the land would not be allowed.


لا طاعة لمخلوق في معصية الخالق

``There is no obedience to the creation in the disobedience of the Creator.``


Islamically, there are stipulated amounts for women after a divorce. Therefore, it is necessary to follow this Islamic ruling (despite the law of the land opposing this ruling). In this situation, the woman will receive her mahr (dowry) (if she has not received it yet), the living expenses (nafaqah) of her iddah (waiting period) which is 3 menstrual cycles if she is a woman who menstruates, and a place of stay (sukna) for her iddah (waiting period). The 3 menstrual cycles is the iddah (waiting period) of a menstruating woman in the Hanafi school of thought.


عن عمر رضي الله عنه إني سمعت رسول الله صلى الله عليه و سلم يقول : للمطلقة الثلاث النفقة و السكنى ما دامت فى العدة

-نصب الراية



`Umar (ra) narrates that he (ra) heard the Prophet (saw) saying, for the divorced woman (irrevocable) is nafaqah (living expenses), and sukna (place of stay), so long as she is in her iddah (waiting period)``



تجب لمطلقة الرجعي والبائن والفرقة بلا معصية النفقة والسكنى والكسوة إن طالت المدة

الدر المختار

``It is necessary for the woman who was divorced an revocable divorce or an irrevocable divorce or a separation without the cause of such divorce or separation being due to the woman`s sin /fault, a place of stay and clothing to the end of the waiting period (despite it`s length)``


المعتدة عن الطلاق تستحق النفقة والسكنى كان الطلاق رجعيا أو بائنا أو ثلاثا

الفتاوي الهندية

``The woman in her waiting period due to a divorce, is rightful of living expenses, and a place to stay, whether she was divorced revocably, or irrevocably, or thrice. ``


Allah (swt) mentions the sin of taking wealth without consent:

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ إِلَّا أَن تَكُونَ تِجَارَةً عَن تَرَاضٍ مِّنكُمْ وَلَا تَقْتُلُوا أَنفُسَكُمْ إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيمً



O you who believe, do not devour each other’s property by false means, unless it is trade conducted with your mutual consent. Do not kill one another. Indeed, Allah has been Very-Merciful to you

(4:29).


Similarly, the Prophet (Saw) said,

``...كُلُّ الْمُسْلِمِ عَلَى الْمُسْلِمِ حَرَامٌ دَمُهُ وَمَالُهُ وَعِرْضُهُ ‏"‏ ‏

All things of a Muslim are inviolable for his brother in faith: his blood, his wealth and his honor. (Sahih Muslim)


The wealth and assets of a Muslim become haram for another Muslim to violate/take unrightfully. The amount that has been stipulated by Shariah (enough to suffice her during iddah) will be halal for her. Excess wealth/assets that are taken without the consent of the husband will be impermissible. Wealth and assets that the husband has willingly agreed to will be permissible for her to take.

Therefore, for the wife to seek half of his wealth, when she is not rightful, will be impermissible. If she was to acquire his wealth, it would not be permissible for her to use (as she is not the owner of this wealth).


This is specific to the scenario in which the woman has not contributed to assets (household etc), and the wealth is solely the husband`s. Therefore, besides the iddah spendings and mahr, the wealth belongs to the husband. Similarly, if the woman works, has her own wealth, this wealth will belong to her- and the husband will not be allowed to take from it.


If you have any further questions or clarifications regarding your specific situation, please call 416 750 2253 to arrange a time to speak with Maulana Kasim Ingar Hafidhahullah.

And Allah Ta’āla Knows Best


Regards,

Student - Jamiah Islamiyah Abu Bakr


Checked & Approved by Shaykh Kasim Ingar


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