ABDUL AZEEZ MARUF OLAYEMI

Ahmad Ibrahim Kulliyah of LawsInternational Islamic University , Malaysia

‘What God binds together, let no man put asunder’ is an axiom which connotes that divorce is an abominable situation which no culture, society, religion or law across the world encourages.

However it may be the only panacea to the preservation of fundamental rights such as right to life and etc. That is in the situation where there are acceptable grounds for its occurrence… Hence its legalization.

However, the legalization is not without responsibilities which are almost equal to that of the responsibilities during the marriage or even more.

Both Islamic Law (Shariah) and the Statute Law have provisions for mandatory financial responsibilities after divorce which are of two folds:

1.Financial responsibilities that is obligatory on either of the divorced couple.

2.Child support (if the marriage is blessed with child(ren).

In the Shariah, when divorce occurred between a couple, be it by legal separation or dissolution of marriage, the ex-husband or ex-husband-to-be is obliged to the following financial responsibilities:

1. Maintenance during iddah (Annafaqah)

2. Nursing Wages / Ujratur Rada’ah

3. Child support

4. Almut’ah (Alimony)

The Holy QurThe Holy Qur’’an prescribes that divorcee should an prescribes that divorcee should remain in the matrimonial house during theremain in the matrimonial house during the waiting period (Iddah)waiting period (Iddah) and that the husband must and that the husband must be responsible for the maintenance throughout be responsible for the maintenance throughout the period.the period.

““0 Prophet, when you divorse women, divorce them at their 0 Prophet, when you divorse women, divorce them at their prescribed periods, and count accurately riled prescribed periods: prescribed periods, and count accurately riled prescribed periods: and fear Allah Your Lord: and turn them not out of their house, nor and fear Allah Your Lord: and turn them not out of their house, nor shall they themselves leave, except in case they are guilty of shall they themselves leave, except in case they are guilty of satire open lewdness. Those are the limits set by Allahsatire open lewdness. Those are the limits set by Allah ’’’’..QurQur’’an an 65:165:1

Upon the occurrence of divorce between a couple, the Rada’ah (suckling / brest-feeding) of the child of such marriage becomes the subject of contract between the ex-couple, and if the mother of the child agrees to take the responsibility she is entitled to wages from the father of the child as they may agree between themsleves or by the decree of a court.

This is pursuant to stipulation of the holy Qur’an that says:

Mother should breast fed there children…it is incumbent on the father to provide them with maintenance and shelter…

According to the interpretation of jurists ‘mother’ includes both the mother in a marital relation and a divorced mother, and that in the case of a divorced mother she is entitled to wages for the breast feeding (Ar-rada’ah).

Supporting the child is also a sole responsibility of the husband/father. It must continue after the divorce of the mother of the child and until the child is able to cater for himself (if he is a male) or marries (if she is a female)

A divorced woman under Shariah Law is entitled to Al-Mut’ah (Alimony) from her ex-husband as stipulated in the holy Qur’an, as stated bellow:

…… and deliver their alimony to themand deliver their alimony to them………………..

However, Shariah jurists are of various opinions on the question of whether all divorcees are entitled to mut’ah (Alimony) and whether it is compulsory or not.

1. The majority of scholars,which include; Abu Hanifah, Shafi’iy and Ahmad Bin Hambal are on the opinion that it is obligatory to give Mut’ah to a woman that is divorced before the solemnization of the marriage (al-Bina) and after the prescrition of bride-prise (fardul-mahar), and that it is commendable when it is after the solemnization of marriage or prescription of bride prise.

2. Al-malikiyyah holds that it is commendable to give Al-Mut’ah to all divorcees, except in a case whereby she has been given her bride-price and there is yet to occur any cohabitation or seclusion. Thus, in this case, the collected bride-price is seen as sufficient compensation to the divorcee.

* The bone of contention (cause of diverse opinion) is the phrase (ا على المتقينQQنين / حقQQعلى المحس V the ………… in the (حقQQاverses that stipulates Mut’ah. Majority of scholars gave it the interpretation of an obligatory act (Wajib) while Imam Malik interpreted it as a commendable act (Mandub).

However, Al-Qurtubiy mentioned that Shaikh Islam Ahamd Ibn Taimiyyah decleared that Mut’atu-Talaq (Al-Mut’ah) is compulsory on all ex-husbands and that it must be given to all divorcees without any exeption. This is the opinion of Imam Ahamd Bin Hambal as well.

According to Islamic jurists, there is no specific prescribed amount for Al-Mut’ah. The parameter for the determination of the quantity is the adopted ‘Urf (Custom) of each community or as determined by court or through mutual agreement of the ex-couple and with the consideration of there social and economic status.

According to discovery from some articles of WLUML (Women Living under Muslim Law), some of the countries that apply the rule of Mut’ah in divorce cases are Eygpt, Jorndan, Bangladesh and Malaysia.

The Malaysian Islamic Family Law as regards post divorce maintenance is established on the Sura II Verse 241.The Islamic Family Law (Federal Territory) Act 1984 provides, in addition to the woman’s right to maintenance, that a woman who has been divorced without just cause by her husband may apply to the Shari’a Court for mut’a and the Court may, after hearing the parties and after being satisfied that the woman has been divorced without just cause, order the husband to pay such sum as may be fair according to the hukum syara, which is based on Sura II Verse 241 of the Qur’an.

In the Bangladesh case of Gul Bibi v. Muhammad Saleem PLD 1978 Quetta 177.

The argument was based on justice and common sense and the position that it is possible to borrow from another school of Muslim law when one school does not provide relief. Thus the Court held “According to Shiah and Shafi law that the wife is entitled to maintenance notwithstanding the fact that she was allowed to get into arrears without having the amount fixed by the Court, or by agreement with the husband...

Malaysian case of Tengku Puteri Zainah Tengku Eskandar v. Datuk Seri Najib Razak.

The plaintiff sued her ex-husband inter alia for the Mut’ah of M$5m (S$2.1 million) and Datuk Najib, in his statement of defence, offered to pay Tengku Puteri Zainah Tengku Eskandar M$36,000 without acknowledging liability.

The plaintiff appealed..

The court dismissed the application on Aug 27, 1992. In her application, Tengku Puteri Zainah seeks to obtain the list of movable or immovable assets belonging to Datuk Najib or in the name of his agents or nominees and in the possession of his present wife, Datin Seri Rosmah Mansor, with details of acquisition, including dates of purchase, inheritance and other means. She also seeks to obtain the list of monies or moveable assets which were transferred out of Malaysia by Datuk Najib or on his instruction from the date of their marriage on July 15, 1976, until July 12, 1992, the date that the affidavit was filed.

However, Mr Mohamed Raziff submitted that Tengku Puteri Zainah had no right to the list based on provisions of the Syariah law in the country.

Straits Times, Singapore DEC 27 1997

The equivalent of Mut’ah in statutory laws is alimony. Alimony is ‘ the money someone pays to support a husband or wife they no longer married to. Thus, unlike Mut’ah which is mandatory only on the husband, the beneficiary of alimony may either of the divorced couple.

Types of Alimony include:1. Permanent alimony. 2. Rehabilitative alimony3. Limited Alimony , and 4. Reimbursement Alimony

Law Reform (Marriage and Divorce) Act 1976.Section 77 to 86

Power for court to order maintenance of spouse

77. (1) The court may order a man to pay maintenance to his wife or former wife—(a) during the course of any matrimonial proceedings;(b) when granting or subsequent to the grant of a decree of

divorce or judicial separation;(c) if, after a decree declaring her presumed to be dead, she is

found to be alive.(2) The court shall have the corresponding power to order a

woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to her means it is reasonable so to order.

Assessment of maintenance

78. In detennining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.

Power for court to order security for maintenance

79 .The court may in its discretion when awarding maintenance order the person liable to pay such maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay such maintenance or part thereof out of the income from such property and, subject thereto, in trust for the settlor.

Compounding of maintenance

80. An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance, shall not be effective until it has been approved, or approved subject to conditions, by the court, but when so approved shall be a good defence to any claim for maintenance.

Duration of orders for maintenance

81. Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, and subject to section 82, an order for maintenance shall expire—(a) if the maintenance was unsecured, on the death of the husband or of the wife, whichever is the earlier;(b) if the maintenance was secured, on the death of the spouse in whose favour it was made.

Right to maintenance to cease on remarriage

82. (1) The right of any divorced person to receive maintenance from his or her former spouse under any order of court shall cease on his or her marriage to or living in adultery with any other person.

(2)The right of any divorced person to receive maintenance from his or her former spouse under an agreement shall cease on his or her marriage to or living in adultery with any other person unless the agreement otherwise provides.

Power for court to vary orders for maintenance

83. The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

Power for court to vary agreements for maintenance

84. Subject to section 80, the court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after the appointed date, where it is satisfied that there has been any material change in the circumstances and notwithstanding any provision to the contrary in any such agreement.

Maintenance payable under order of court to be inalienable

85. Maintenance payable to any person under any order of court shall not be assignable or transferable or liable to be attached, sequestered or levied upon for, or in respect of, any debt or claim whatsoever.

Recovery of arrears of maintenance

86. (1)Subject to subsection (3), arrears of unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his or her bankruptcy and, where they accrued due before his or her death, shall be a debt due from his or her estate.

(2)Subject to subsection (3), arrears of unsecured maintenance which accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of such person.

(3)No amount owing as maintenance shall be recoverable in any suit if it accrued due more than three years before the institution of the suit.

Both Islamic Law and the Statute Law agree on the obligation of financial responsibility after divorce, with slight variation.

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