Laws on Family Life
Laws on Family Life
Prevalence . Family and commercial law are the most developed branches of Muslim law. Even today Muslim family or “personal status” law tends to prevail in most Muslim countries, with the exception of Turkey, Central Asia, and to some extent Tunisia. Family law can be divided into several categories, the most important of which are laws governing marriage, divorce, guardianship and child custody, and inheritance.
Wedlock . Marriage in Islam is more a civil contract between the two parties than a religious rite. Except in the Hanafi school of law, the approval of the bride’s guardian is required. The bride must also give her consent. A mutually acceptable dowry is paid by the groom to the bride (Qur’an 4: 4, 19–21, 24–25). In order to facilitate marriage, the law has often emphasized that a dowry need not be large, but in practice it has often been substantial. Part of the dowry may be delayed; that is, if a husband divorces his wife, he must in effect pay a penalty to exit from the marriage; and if the marriage continues until the husband dies, the widow is then entitled to take the delayed amount off the top of his estate. Two witnesses are required for a marriage to be valid, and the marriage must be publicly proclaimed. A man may marry as many as four wives (Qur’an 4: 3), but he must treat them all equally (4: 129). This provision has been interpreted as meaning that he should give them separate and equal dwellings, clothing, food, and gifts, and must divide his time equally among them. In practice, polygamous households have been uncommon throughout Muslim history. The practice of polygamy is meant specifically to ensure the legitimacy of all children, and to prevent recourse to illicit sex outside marriage. A man must treat his wife well (Qur’an 2: 228; 4: 19, 129; 30: 21), which includes giving her sexual satisfaction. In return the wife must give her husband sexual access. She is not required to perform other services; whatever cooking or housework she does is her voluntary contribution. The husband is financially responsible for the household (Qur’an 4: 34), and any money the wife may contribute is a voluntary charity (4: 4). The husband must keep the wife in the manner to which she was accustomed while growing up, providing suitable food, clothing, and accommodations. This responsibility extends to providing for the children as well (Qur’an 2: 233). If one’s wife grew up having a servant, the husband should see to it that this level of service continues.
Divorce . Although the Prophet is reported in hadiths to have said that divorce is the permissible action God dislikes most, several kinds of divorce are allowed. However, Muslim divorce is by no means as easy as non-Muslims sometimes imagine. The husband pronounces the divorce by making a clear statement. When he pronounces divorce once, which should be done when the wife is not having her monthly period, the wife remains married to him until she has completed her waiting time (‘iddah), which is until the beginning of her third monthly course after the divorce (Qur’an 2: 228; 65: 1). If a woman has no monthly courses, the waiting period is three months (Qur’an 65: 4). Although the woman stays in the household (Qur’an 65: 1), and her husband remains financially responsible for her during this time (65: 6), they are not to have conjugal relations, and if they do, the divorce is canceled. During the wife’s waiting time, the husband may cancel the divorce and resume the marriage. After the waiting time elapses, the divorce is final. If the couple then decides they do not want to be divorced, they must remarry with a new marriage contract and dowry (Qur’an 65: 2). If the husband pronounces divorce three times, however, the marriage is ended immediately, and the couple may not remarry one another until the divorced wife has married another man, consummated the marriage with him, and been divorced from him in turn (Qur’an 2: 229–230). The triply divorced wife must still wait until the appearance of her third monthly course to remarry, however. This restriction was made to leave no doubt about the paternity of any child that may be conceived near the time of the divorce and remarriage.
Repudiation . Several other kinds of divorce also exist. If a man says to his wife that she is like his mother’s back, they are immediately and definitely divorced, but they can remarry under a new contract and dowry. In addition, because this means of divorce is regarded as sinful, the husband must free a Muslim slave, or fast sixty days, or feed sixty poor people in expiation before he can resume the marriage (Qur’an 33: 4; 58: 1–4), though he need not do so if he marries another. Furthermore, if a man swears that he will not have sexual relations with his wife for four or more months and then carries out the promise, he and his wife are considered divorced at the end of the four months (Qur’an 2: 226–227). If a husband accuses his wife of adultery or denies his paternity of a child she has borne, the marriage is immediately dissolved, and the couple can never remarry at all under any circumstances (Qur’an 24: 6–9) because of the gravity of the accusation. All these forms of divorce are meant to protect the woman from being kept in marriage by a husband who does not want her as a wife but will not divorce her (Qur’an 2: 231; 4: 129). A man is also not entitled to take any of the dowry or his wife’s other property by force (2: 229; 4:19–21).
A Wife’s Right to Divorce . There are also several forms of divorce that can be initiated by the wife. If the wife agrees to pay her husband a certain amount of money to divorce her, and he agrees, then they are immediately and definitely divorced and can remarry only under a new contract and dowry (Qur’an 2: 229). If the wife sues the husband for divorce in court, and he is shown to be at fault, the judge dissolves the marriage, and the wife pays the husband nothing. The grounds for such a complaint by the wife vary among the schools of law. All schools consider the husband’s impotence a ground for divorce. Others include desertion and lack of maintenance of one’s wife and children (Qur’an 2: 233). In the Maliki school, the wife may also sue for divorce on the grounds of cruelty. A husband may also grant the wife the right to pronounce divorce, and that right may be written into the marriage contract. The Hanbali school also allows a woman to insert in the marriage contract a condition stating that she will be automatically divorced should her husband marry a second wife.
Children . Regulations on child guardianship (wilayah) and custody (hadanah) in Islam vary considerably among the different schools. Usually, guardianship, which includes the responsibility for the education of and provision for the child, belongs to the father, and in default to the nearest relative on the father’s side. If no one at all on the father’s side is suitable or willing to take guardianship, however, a Muslim judge can grant guardianship to the mother or someone in her family. However, the custody of the child, caring for the child in one’s home, belongs to the mother or, in default, to the closest female relative on the mother’s side, the first being the mother’s mother. If the closest female relative does not take custody, it may revert to the father’s side. A father cannot be denied access to his child but also cannot take him or her away from the mother until the child reaches a certain age, which differs greatly among the schools. According to the Hanafi school, when a son is between the ages of seven and nine he should go to live with his father, and a daughter should reside with her father after the age of nine to eleven. For Malikis, the son should go to the father at puberty, but the daughter should stay with her mother until marriage. The Shafi‘is hold that the child should start out with its mother and at the age of seven be allowed to chose the parent with whom it would like to live. The Hanbalis accord the right to choose to Shi‘is transfer custody to the father when a son is two and a daughter is seven. In all the schools the mother may lose custody earlier if she remarries, but in this case custody does not immediately revert to the father but rather to relatives on the mother’s side. The priority according to which these relatives are listed varies among the schools, but the first person on any list is the mother’s mother. Thus, a grandparent’s rights are acknowledged by Muslim law.
Heirs . Inheritance in Islam is regulated by the Qur’an (2: 180–182; 4: 7–9, 11–12, 19, 33, 176). All debts are paid first. Then, if there is a will, bequests made by the testator are paid. No more than one-third of an estate may be disposed of by will, and bequests can be made only to persons or organizations that are not heirs to the remainder of the estate. After these bequests are made, fixed shares are given to relatives entitled to them according to the Qur’an (4: 11–12, 176). Generally, a male gets twice the share of a female because males are required to maintain female family members, while women bear no such financial burdens in the intact Muslim family. A son shares the inheritance with his surviving parent, other siblings, and his grandparents, and all more-distant relatives
are excluded from inheritance. If the deceased leaves only daughters, they may inherit no more than two-thirds of the estate, or one-half if there is only one daughter, and some of the inheritance goes to more-distant relatives, such as uncles and aunts. Husbands and wives also inherit fixed shares.
K. N. Ahmad, Muslim Law of Divorce (New Delhi: Kitab Bhavan, 1978).
Asaf A. A. Fyzee, Outlines of Muhammadan Law, fourth edition (Oxford: Oxford University Press, 1974).
Chibli Mallat and Jane Connors, eds., Islamic Family Law (London: Graham & Trotman, 1989).