right of woman after divorce

7/31/2019 Right of Woman After Divorce

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Introduction

Issues related to the topic

Elaboration and discussion

Conclusion


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Introduction

Women's rights after divorce as far as their formerspouse's pension can be difficult to understand,even for lawyers. It is undeniable that, manywomen finding it was difficult to survive afterdivorce or after losing her husband. This is mainly

because they are not formerly working (full-timehousewife) or not being able to work because shedoesnt got the permission from the husband.

Thus, it is necessary for a woman to have someright for the children and herself to stay alive.


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What happen if there is noright of woman after divorce?

suicide

Starvation

Homeless

Increase of divorcerate

Depression

murder


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Elaboration and discussion

The right of woman after divorce


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A WOMANS RIGHT TO HER

CHILD CUSTODY


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In case of separation or divorced betweena husband and wife, the custody of thechild will be given to the mother.

According to Amr Ibn Shu'aib, awoman came to the Prophet (saaws -peace and blessings of Allah be uponhim) and said: 'Truly my belly servedas a container for my son here, and mybreast served as a skin-bag for him (to

drink out of) and my bosom served asa refuge for him; and now his fatherhas divorced me, and he (also) desiresto take him away from me.' TheProphet said: 'You have a better rightto have him, as long as you do notmarry again.

Hadith: Ibn Majah


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School of Law Transfer

trigger

Next eligible

custodian

Next eligible

custodian

Next eligible

custodian

Hanafi Boy: 7 / 9 year

age

Girl: marriage /

9-11 age

Boy: Choice of

either parents

Girl: Father

Maternal

grandmother /

paternal

grandmother

Mothers sister

(khala)

Shafie 7 years age/

discretion age

Choice of

either parents

Maternal

grandmother /

paternal

grandmother

Mothers sister

(khala)

Maliki Boy: Maturity

Girl: Marriage

Grandmother Maternal

grandmother /Khala

Paternal

grandmother

Hanbali 7 years age Choice of

either parents

Maternal

grandmother /

paternal

grandmother

Mothers sister

(khala)

Duration of custody between the Four Schools of Islamic

Jurisprudence.


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Besides that the right of custody also can be takenaway from the mother if she :

1. Leaves Islam2. Openly indulges in sins such as adultery3. She does not attend to the child due to her leaving

the house very often4. She marries a non-relative (stranger) to the child by

which the child may be affected5. She demands payment for the upbringing of the

child if there is another woman to raise the childwithout remuneration


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A father should provide the necessities of his childreneven though they are under their mothers obligation.

Atall times the father of the child is responsible formaintaining the child; in the case of a female, untilshe marries; while in the case of a healthy male, untilhe reaches maturity. In the case of a disabled child

(male or female) the father is permanentlyresponsible.

(See Radd al-Muhtar of Ibn Abidin Ibid 604).

When the mother has the rights of custody but doesnot have a shelter to stay in with the child, the fathermust provide shelter forboth

(See Radd al-Muhtar of Ibn Abidin Ibid pg.

561)


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IDDAH MAINTENANCEWhat is Iddah and when is the iddah maintenance given?

Iddah is the length of time that a wife must wait following

her divorce or following the death of her husband to makesure that she is not pregnant before she could re-marry.During this period, maintenance (nafkah iddah) will beprovided for by her ex-husband.

Iddah falls under four classifications:

Iddah caused by talak Pregnancy Iddah

Iddah caused by the death of the husband

Iddah wife who lost her husband


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Hadith

(O Prophet! When you divorce women, divorce them at their Ìddah)

Al-Bukhari recorded that Àbdullah bin Ùmar divorced his wife,during the lifetime of Allah's Messenger , while she wasmenstruating. Ùmar bin Al-Khattab mentioned that to Allah'sMessenger . Allah's Messenger became angry and said,

(Order him to take her back and keep her until she is clean from her

menses, and then to wait until she gets her next period andbecomes clean again. Then, if he wishes to divorce her, he candivorce her when she is clean from her menses, before he hassexual intercourse with her. This is the Ìddah which Allah theExalted and Most Honored has fixed.) Al-Bukhari recorded thisHadith in several parts of his Sahih. Muslim collected this Hadithand his


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Importance from the rule of iddah

1. Give an ample time for the husband and wife tothink for them to make a decision weather they wantto be together again or not.

2. To ensure that the woman is not pregnant from thefirst husband.

3. Giving the time for the couple to reminisced thedeeds received in their good time.


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MutahWhat is Mutah?

Mutah is a bundle of property where the husband must give to his ex-wife if the source of divorce comes from the wife and not from thedeath of the husband as another word its a gift at the time ofdivorce.

The form of Mutah :Mutah can be in a form ofcloth, things or money according to the

wealth of the husband. Islam has no guideline for the rate of Mutah.

The rate of Mutah is dependent on the redha and agreement

between the husband and wife. However,if there is some

disagreement between them, the Syariah Court will decide the ratethat the husband suppose to give to the wife.


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The function of Mutah :

The ex-wife can use that money to begin a new independent lifepost-divorce.

To avoid public negative perception on the ex-wife. To ensure that the divorce proceedings are conducted in the right

spirit and as a symbol of appreciation for the ex-wifes sacrifices andcontribution to the family.

Hadith (The Mut`ah (Gift) at the time of Divorce)Allah commands the husband to give the wife (whom he divorcesbefore consummating the marriage) a gift of a reasonable amount,the rich according to his means and the poor according to hismeans, to compensate her for her loss.

Al-Bukhari reported in his Sahih that Sahl bin Sa`d and Abu Usaydsaid that Allah's Messenger married Umaymah bint Sharahil. Whenshe was brought to the Prophet he extended his hand to her, butshe did not like that. The Prophet then ordered Abu Usayd to

provide provisions for her along with a gift of two garments.


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Issue related to mutah


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The Right to Claim the Debt

Woman can claim the dept to the husband if he did not paydowry, did not give any money to live during marriage, did not payanything to raise the child and so on. The divorced woman can onlyclaim the money she and the children didnt get for her basic needs

during marriage.

Dowry is the gift from a groom to the bride of either a fixedfinancial amount or even a property amount. It is commonlymistaken to wedding present from the groom. (hantaran)

"And give women (on marriage) their dower (Mahr) as a free gift;but if they, of their own good pleasure, remit any part of it to you,take it and enjoy it with right good cheer." (An-Nisa' :4)

As giving a dowry to the bride is obligatory in Islam, ahusband is prohibited to take back the dowry. Paying the dowrymust not be delayed, unless the wife give the permission.


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Dowry rate according to states in Malaysia

State Value (RM)

Virgin Widow/Divorced

Perlis / Kedah / Terngganu /

Kelantan

Not Specified

Pulau Pinang RM 24.00

Perak RM 101.00

Selangor* / Kuala Lumpur RM 80.00 RM 40.00

Negeri Sembilan* RM 24.00 RM 12.00

Melaka RM 40.00

Johor RM 22.50

Pahang RM 22.50

Sabah RM 100.00 RM 80.00

Serawak RM 120.00 RM120.00


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The right to have a share of the properties gained during marriage period.

A divorced woman has the right on the properties gainedduring the marriage period. The court has the power to give order to

the couple to split up the properties or to sell them and split betweenthe two. Actually, there is no exact wording from our prophet (SAW) norit was ever stated by the muslim scholar. Splitting the properties gainedduring the marriage period is more likely to be the custom in Malaysia.This rule is allowed because it does not against the Islamic law, thus it

is included in Syariahs Law in Malaysia.


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Quran Verse

And do not long for things by which Allah has given superiority tosome of you over others; for men is the share of what they earn; and forwomen the share from what they earn; and seek from Allah Hismunificence; indeed Allah knows everything.(4:32 )

Maybe one may wonder why the non-working wife has the righton the properties. This is simply because she is always be beside him togive him moral support, ideas etc. while the other one struggling to gainthe money or even a title. It is believed that every mans success hasa woman behind him. Thus, it is fair that she have the rights on the

properties as it is possible that the husband may gain nothing from thesupport of a wife.


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The right to accommodation and alimony


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{ Keep the women in the same style as you live, according to your means.

And do not harm them, so as to restrict them. And if they are bearing (child),

then spend on them until they deliver their burden: and if they suckle for you,

give them their recompense: and take mutual counsel together, according to

what is just and reasonable. And if you find yourselves in difficulties, let

another woman suckle instead.

( Surah at-talaq (65) : 6)

He also Says:

{And for divorced women, maintenance (should be provided) on reasonable

(scale). This is a duty on Al-Muttaqn.}

[Surah al-baqarah(2):241].


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A divorced wife has the following instant rights over her (previous)

husband:

1. He has to provide her with housing and maintenance or alimony ifshe is in a state of revocable divorce, as long as she is in her

'Iddah .

- Allah Says (interpreting of meaning):

{ Keep the women in the same style as you live, according to your

means. And do not harm them, so as to restrict them}

[65:6]

- Qatadah said:

'If you can only afford to accommodate her in a corner of yourhouse, then do so


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3. The breast-feeding divorced woman also has the right of wages of sucha nursing.

* Allah Says (interpretation of meaning):

{Then if they give suck to the children for you, give them their duepayment, } [65:6].

* She is allowed to enter into a contract with the father or hisrepresentative in return for whatever payment they agree to

* If the divorced couple disagrees, because the woman asks for an

unreasonable fee for suckling their child, and the father refuses to paythe amount or offers an unreasonable amount, he may find anotherwoman to suckle his child

*Allah Says ( interpretation of meaning):

{ And if you find yourselves in difficulties, let another woman suckle

instead.} [65:6]

* If the mother agrees to accept the amount that was to be paid to thewoman who agreed to suckle the child, then she has more right tosuckle


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Limitations:

Islamic Family Law (Federal Territory) Act 1984 : section 71.(Seksyen 71 Akta Undang-Undang Keluarga Islam (Wilayah Persekutuan) 1984 )

(1) A divorced woman is entitled to stay in the home where she used to live whenshe was married, for so long as the husband is not able to get other suitableaccommodation to her .

(2) The right of accommodation provided in subsection (1) shall cease

(a) if the period of iddah has expired; or(b) if the period of guardianship of the children has expired ; or(c) if the woman has remarried; or

(d) If the woman has been guilty of open lewdness (fahisyah).

And there upon the husband may apply to the court for the return of the home to him.

Allah Says (interpretation of meaning):

{and turn them not out of their (husband's) homes, nor shall they

(themselves) leave, except in case they are guilty of some open illegal sexual

intercourse. And those are the set limits of Allh. } [65:1].


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Conclusion

Right of woman after divorce is very important toavoid many consequence problems. Refer slideno.3

The best way to solve these problems is bydiscussion between the couple without involvingthe third party.

The most important thing is the husband and the

wife must not involve their emotional problem insolving this matter. It is clear that woman is never being oppressed

in Islam.


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THANK YOU

right of woman after divorce

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