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The Assembly’s Family Code For Muslim Communities in North America

The Assembly of Muslim Jurists of America

The Assembly’s Family Code

For Muslim Communities in non-Muslim Societies

اضغط هنا لقراءة وثيقة المجمع للأحوال الشخصية باللغة العربية



Prepared By

Dr. Salâh al-Sawy

Secretary General of Assembly

  

Reviewed and Revised

The Assembly’s 8th Annual Conference

Held in Kuwait during Jumâdâ al-Awal 1433H ~ March 2012

  

Preamble to the Legal Code

 

In the name of Allah, the Most Merciful, the Bestower of Mercy

 

       All praise is for Allah, and may salutations and peace be upon the Messenger of Allah, and upon his family, his companions, and those loyal to him.

The family is the most essential social nucleus in human life. A man’s usrah (family) entails his household, his relatives, and his closest kin. Originally, the term usrah denotes an impregnable shield, and it was used in reference to a man’s household and his relatives because he is empowered through them.

       Family life has preceded human existence atop the Earth. Allah (st) wished that the human being belong to a family before he descends to the Earth, namely Âdam (as) who was in Paradise with his wife, and we do not know that he (as) ever lived alone. Rather, Allah created for him a wife, Hawâ’, from the very beginning.

Likewise, the Islamic call did not commence in Mecca until after the family was composed, due to the positive role played by the family to ensure peace of mind, and enhance emotional and social stability.

       The spine of the family structure in the Sharia, as well as all the heavenly revelations, is based on tranquility, love, and mercy. The noble verse in Surat ar-Room concisely outlined this concept in a few words, and considered this phenomenon one of the signs of Allah – the Mighty and Majestic – and thus listed it amidst a series of universal signs which the mindful ponder over to attain faith and become steadfast upon it. Prior to it, signs were mentioned such as creating the human being from dust, and then the creation of the heavens and Earth, and then the variety of languages and colors. Then, the Most High said, And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought.” [ar-Room: 21]

Prior to that, the Most High said, And of His signs is that He created you from dust; then, suddenly you were human beings dispersing [throughout the earth.” [ar-Room: 20]

       And then following that, the Most High said, And of His signs is the creation of the heavens and the earth and the diversity of your languages and your colors. Indeed in that are signs for those of knowledge. [ar-Room: 22]

       Therefore, fueling the clash between the male and female in family relationships, and portraying it as an actual conflict and a legitimate dispute is a malicious secular agenda which no heavenly law approves of, nor does it agree with basic human nature, nor is it consistent with the rationale of the sensible.

He who created the male and female says in His Noble Book, that you may find tranquility in them; and He placed between you affection and mercy. [ar-Room: 21] Hence, may the propagators of falsehood be defaced, and may the deniers be disgraced – those who strive to defy the signs of Allah!

Legislating family laws has occupied a distinct position in the Noble Qur’an, wherein it elaborated matters in great detail, and established rulings for it and reiterated them, all in light of its vital importance in building societies and civilizations, and because Allah – the Mighty and Majestic – had foreknown that these family laws would be subjected to storms of alienation and aggression which seek to uproot them, annihilate this framework, and distort its features! For that reason, we find these brilliant Qur’anic details that explain its rulings in a manner that no other area of legislation has received.

       Finally, this code is an attempt from the Assembly to organize the family rulings for those abroad, outside the lands of Islam, in a manner resembling that of our modern day legal codes. It deals with the rulings concerning the various family relationships, from the time that building this family was a dream entertained by the imaginations of this couple, and continuing through all the phases and steps involved in building it, maintaining it, and dealing with the smoke and clouds that darken its skies. Then, it concludes by explaining the rulings on separation between the spouses, the rulings on custody, and the rights of children.

The objective here is to provide the Muslims outside the lands of Islam with a definitive document that one can easily refer back to its articles, one that takes into consideration their particular circumstances of time and place, and facilitates presenting it to the judicial and executive bodies of the countries where Muslims live as minorities.

       These codes did not restrict Muslims abroad, to one specific juristic school (madh-hab) which could overburden them, and limit them in a matter that the Sharia had provided flexibility in. Rather, considering the strength of the evidences and the outweighing benefits were behind its choices from our rich juristic heritage. This stems from its belief that Allah – the Glorified and Exalted – did not allot decisive proofs for every ruling in the Sharia. Instead, He made them speculative as a form of leniency for the liable individuals! At the same time, this code did not pick the unusual views and the unjustifiable concessions of each madh-hab, but treaded a middle path in the matter as best it could, seeking to uphold the decision which the Assembly previously concluded in its Charter of Honor regarding the protocol of giving fatwa (religious edicts). Therein, it was decided to, “Direct the layman to the customary, moderate position from the scholarly views, while avoiding the odd and unusual positions.”

       Then, this document was crowned with a discussion by the Assembly during its 8th annual conference, where an entire conference was dedicated to its revision at the hands of its members and experts. Over the course of four full days, it was discussed, paragraph by paragraph and word by word, until it was finally produced in this manner which I expect was an exhaustive effort that left us feeling that we could not possibly add anything at the current time.

       We extend this document to the esteemed Imâm(s) of the mosques, and to the arbitrators who mitigate family disputes in Western societies, to be a reference for them by which the fatâwâ and arbitration verdicts could become more unified. In the future, if the practical application reveals the need to add, revise, or verify, then our chests will not be discomforted by that. Rather, we are vigilant for just that, and openly awaiting your remarks, for the truth is ancient and nothing will change it!

 

Finally, we recognize that this document, within its intended scope of application, will only serve as an advisory and consultative reference, and the actual implementation of its rulings will be contingent upon the mutual acceptance of the concerned parties. Moreover, individual cases may vary, and the contextual differences must be taken in consideration while applying the general guidelines. The use of this document in arbitration may serve the purpose of pre-court conflict resolution. Such arbitration may also be used by the judicial authorities, when applicable, to save the judiciary the effort and cost of resolving a plethora of family problems.  In the instance that one or both parties involved in a dispute refuse to accept the Shariah guidelines for dealing with family affairs, it will be left to the jurisdiction of the local court and legal system to settle their dispute.  In this setting, the court may or may not consider the guidelines of the Islamic faith.  For this reason, we advise all parties in this case to fear Allah and take only that which He designated for them.

We also recognize that we are not the first religious community to have their own teachings codified for arbitration. We were preceded in this regard by the Jews and Catholics as well as others. Such religious arbitration is expected to cause greater stability of the family structure and more harmony between the different parties in that institution.

And Allah is behind our motives, and He alone is the Guide to the straight path.      

  

CHAPTER ONE 

The Engagement

Section One

The Nature of the Engagement and the Interactions Therein

Article 1: The engagement is a request and mutual promise to marry. No particular wording is stipulated for it, but rather it is effected by anything that customarily indicates it. It is not considered a marriage, but rather a preamble to it, and hence does not assert any marital rights, nor any financial responsibilities, nor does it permit anything ordinarily unlawful between the two parties.

Article 2: The norm is that suitors propose to the woman or one from her kin.  It is also permissible for the woman to propose to a righteous suitor or his agent if needed.

Article 3: For a valid engagement with a woman, she must not be currently unavailable for marriage due to any reason, nor currently engaged to another suitor.

Article 4:      Each of the engaging parties has the right to see the other's face and hands, and they can speak to one another in an appropriate manner without seclusion, and the fiancée’s permission or knowledge is not a condition for looking at her.  

 

Section Two

Those Unlawful for Engagement

Article 5: It is unlawful to engage whoever is unlawful to marry. Hence, it is unlawful to engage any woman who is permanently unlawful for marriage due to ancestry, marriage, or nursing, or those who cannot be married due to being temporarily unlawful.

Article 6: It is unlawful to engage a currently engaged woman who has chosen a suitor, unless he ends the engagement or permits that.

Article 7:      It is unlawful to explicitly propose to any woman observing her ‘iddah (waiting period), irrespective of what kind of ‘iddah. As for insinuating that intention, that is permissible for the wife whose husband has died, or divorced her irrevocably, or when the marriage has been dissolved due to a reason that warranted it. 

  

Section Three

Ending the Engagement and Compensation for That

Article 8: Engagement is a non-binding promise to marry, and therefore each party reserves the right to end it when warrated. It is disliked to end an engagement without a legitimate justification, such as discovering a deficiency in the other’s religious commitment or manners, or some inherent personality imbalance, or due to an unbearable psychological aversion.

Article 9:      Ending the engagement does not require compensation. However, a criminal investigation can sometimes be warranted for violations that accompany ending the engagement which harm the other party, such as spreading harmful rumors to justify why the engagement was terminated.

 

Section Four

Retrieving the Gifts and Advance Sadâq upon Ending the Engagement

Article 10:    The party that ends the engagement without a valid reason must return the gifts presented to him/her if they still exist, or their likes, or their value on the day of receipt, if they have been consumed, or if they were usable by nature such a food, sweets, and the likes.

Article 11:    Upon ending the engagement, the suitor has the right to retrieve the sadâq (wedding gift) he had given if it still exists, or its likes, or its value on the day it was received. 

 

CHAPTER TWO 

The Marriage Contract

Article 12:    Marriage is a contract between a man and woman that entails the permissibility of enjoying one another within the legal parameters of the Sharia.

 

Section One

Conditions Stipulated within the Marriage Contract

Article 13:    The spouses must abide by their conditions, except for a condition that permits the unlawful or prohibits the lawful.

Article 14:    The wife has the right to stipulate in the marriage contract, or her husband can stipulate for her, whatever involves a lawful benefit for the woman that does not contradict the essence of marriage – such as completing her studies, remaining in her job, him not marrying another alongside her, him not relocating her outside her hometown or country, and the likes. If the husband does not uphold this condition, then the wife is entitled to demand an annulment or legal enforced divorce. She can also determine, by mutual consent with the husband, other forms of penalty that don’t violate the Sharia, such as a monetary compensation, in exchange for foregoing her right to litigation upon acquiring the agreed upon settlement.

Article 15:    When a Muslim is marrying a woman from the People of the Book outside the lands of Islam, he must stipulate in the marriage contract that Islam is the religion of the children, and that the spouses will seek judgment from the Islamic Sharia in the matters related to family law such as marriage, divorce, inheritance, bequests, and custody – and that decisions will be sought with an Islamic entity in times of dispute. This is what is Islamically binding on the Muslim, and it will be finally up to the other party to accept such clause or reject it.([1])

Article 16:    If the marriage contract involves a stipulation that undermines its essence, then the condition is null and the contract is valid.  

 

Section Two

The Guardian’s Role in the Marriage Contract

Article 17:    The default is that the Muslim woman’s wali (guardian), or his deputy, are to perform her marriage contract after she has been consulted and consents. His permission is both a religious and social necessity.

Article 18:    Marriages whose validity is controversial between the jurists are not to be annulled, although it is preferred for them to be redone as a precautionary measure. An example of this is a contract being effected with a compatible suitor but without a wali, for the sadâq of her likes, given that the woman was a sane adult.

Article 19:    The Muslim judge in the lands of Islam, or those in his position abroad (namely the arbitrators and those appointed by the Muslim community to perform marriages, and are licensed by the state to carry out marriage contracts), should undertake the marrying of new Muslim sisters who have no paternal relatives upon Islam. If no entity exists that is responsible for performing such marriage contracts, then she would delegate in that case any man from the Muslim community whom she accepts to represent her.

Article 20:    A woman from the People of the Book is married off by her guardian from the People of the Book, or the Muslim judge, or those in his position. Her marriage should not be annulled if she marriages herself off, or if she appoints a Muslim to marry her off, or a Muslim agrees to marry her through a judge from the People of the Book.

Article 21:    The wali position in marriage is restricted to the paternal relatives: the fathers, followed by the sons, followed by the brothers, followed by the paternal uncles. If two guardians are equidistant in their relationship, then either of them executing the marriage contract with its proper conditions is permissible, and it becomes obligatory upon the one whom the bride selects for this.

Article 22:    It is stipulated that the wali carrying out the marriage contract must be a competent (namely a sane adult) Muslim male, and that his willing consent isn’t compromised (such as being forced, mistaken, or tricked), and that he isn’t observing a state of ihrâm for Hajj or ‘umrah.

 

The Absence or Hindrance of the Wali

Article 23:    In order for marrying a sane adult woman to be valid, it must happen with her permission and consent. It is impermissible for her guardians to prevent her from marrying any compatible suitor she pleases, just as they cannot prevent a divorcee from returning to her husband if it were revocable.

Article 24:    If the wali refuses to marriage the woman to someone compatible, without a legitimate justification, then his guardianship is transferred to the Muslim judge or those in his position outside the lands of Islam.

Article 25:    If the nearest wali is absent for a long time, or his location is unknown, or he is unreachable, then his guardianship is transferred to the following wali if the Muslim judge permits, or to the Muslim judge himself, or to those in his position outside the lands of Islam.     

 

Section Three

The Wording of the Marriage Contract

Article 26:    A marriage is contracted by one of the two parties, or his deputized representative, making an offer and it being accepted by the other, or his deputized representative, in a manner that clearly denotes the intended meaning in light of the Sharia. This can be in any language understood by both contracting parties, and if there exists an inability to speak, then by writing, or by an intelligible gesture when writing also is not possible.

Article 27:    It is necessary that the acceptance be identical to the offer, and that it be stated in the same gathering as the offer, and that they are both effective immediately, and that each of the contracting parties hears the words of the other.

Article 28:    Stipulating a timespan in a marriage contract invalidates it.

Contracting a Marriage Over the Telephone

Article 29:    A marriage can be contracted over the telephone, on the condition that both the offering and accepting parties have foreknowledge about one another, and that the witnesses hear both their statements. It is preferred that this take place using any other means [of communication], in order for the two contracting parties and the witnesses to communicate audibly and visually. When that is not possible, the absent party may delegate someone to perform the contract in his place.

Article 30:    A marriage cannot be contracted using e-mail, nor by text messaging, due to the witnesses not being able to verify the identities of its parties, and the absent person delegating another suffices the need for resorting to these means.

Article 31:    Documenting the marriage is not one of its pillars, nor a condition for its validity. However, it is certainly needed nowadays to ensure the preservation of rights, and to prevent denial in disputes, and the legal authorities have the right to obligate it.  Muslims should follow the local jurisdiction or authority in the requirements for the documentation and recording of the marriage process.

 

Section Four

The Women Forbidden for Marriage

Article 32:    For a valid marriage contract, it is stipulated that the woman not be from among those forbidden to marry, namely those with a particular degree of relationship to the groom. This can be due to ancestry, being an in-law, or because of nursing. It makes no difference whether this forbiddance is temporary or perpetual, and it is also necessary that this woman is not currently preoccupied with another marriage or ‘iddah (waiting period).

Women Perpetually Forbidden

Article 33:    The women perpetually forbidden due to ancestry are: the mothers and grandmothers (continuing upwards), the daughters and granddaughters (continuing downwards), the sisters, the daughters of his brothers and sisters, and the maternal and paternal aunts.

Article 34:    The women perpetually forbidden due to marriage (in-laws) are: the wives of the fathers and grandfathers (continuing upwards), the wives of the sons and grandsons (continuing downwards), the wives’ mothers (continuing upwards), and the wives’ daughters (continuing downwards) if the man had consummated with their mothers.

Article 35: 1-     Nursing forbids for marriage in the same ways that ancestry and marriage do.

2- Nursing forbids for marriage when it takes place during the first two years, and atolls to five separate, filling, feedings of breast milk.

3-  The “forbidden for marriage” relationship arises between the child who nursed from one angle, and between the woman who nursed him, the causer of the milk (the wet-nurse's husband), as well as their ancestry, descendents, and their siblings.

Article 36:    It is forbidden for an individual to marry his children (continuing downwards) from fornication, just as it is forbidden for him to marry someone he practiced li‘ân (public imprecation) against, as well as his daughter which he denied using li‘ân (public imprecation).

Article 37:    Fornication contributes to the “forbidden for marriage” category, whereby a person cannot marry the ancestors and descendents of the woman he fornicated with.

 

Women Temporarily Forbidden

Article 38:    The women temporarily forbidden to marry are: the woman married to another, the woman observing ‘iddah (waiting period after divorce from another man), the woman divorced by him thrice until she marries another and consummates the marriage with him then gets a divorce and her ‘iddah expires, the woman in ihrâm for Hajj or ‘umrah, the woman who does not ascribe to a heavenly religion, combining between two sisters, or between any two women who could not marry one another – had one of them been a male – due to either ancestry or nursing, and the fifth wife for someone who currently has four wives, until he divorces one and her ‘iddah expires.

Article 39:    When warranted, a man is entitled to combine between more than one wife, but it is forbidden for him to increase beyond four. However, to avoid harm to themselves and their communities, Muslims should adhere to the local laws and rulings on marriage restrictions.([2]) 

 

The Invalidity of a Muslim Woman Marrying a Non-Muslim

Article 40:    It is unlawful for a Muslim woman to marry a non-Muslim. If that takes place, the marriage is invalid.

Article 41:    It is unlawful for a Muslim man to marry a woman that does not ascribe to a heavenly religion. If that takes place, the marriage is invalid.

Article 42:    If a woman becomes Muslim, but her husband remains upon other than Islam, it becomes unlawful for them to have marital intimacy, though the marriage remains suspended throughout the ‘iddah period. If he embraces Islam, then their marriage continues. If he refuses, she is given the choice between dissolving the marriage in order to become lawful for other suitors, and legal measures are taken to enable her to do that, or she can choose to be patient in anticipation of him embracing Islam. Once he embraces Islam, she can return to him with a new marriage contract. All of this stands on the condition that he does not have intimacy with her throughout this period, since he is foreign to her.([3])

Article 43:    A Muslim man marrying a chaste woman from the People of the Book is lawful, on the condition that it be stipulated in the contract that the Sharia rulings are the reference point during disagreements, and that Islamic arbitration is sought to judge in the disputes that take place between the spouses. This is what is Islamically binding on the Muslim, and it will be finally up to the other party to accept such clause or reject it.

Compatibility in Marriage

Article 44:    Compatibility in marriage is a right that is particular to the woman and her guardian, and it is a condition for the contract beingbinding, but not a condition of validity. The factors to be considered for compatibility are: religious commitment, manners, and the absence of a defect that is repelling or harmful to the healthy party.

 

Section Five

The Sadâq (Wedding Gift)

Article 45:    The sadâq (also called: mahr) is the wealth or benefit offered by the husband to the wife for the sake of marrying her, and from the objectives of the Sharia regarding it is to make it easy and feasible.

Article 46:    There are two types of sadâq. One is the specified sadâq, which is what the two parties expressly state, regardless of whether it is small or much. Another is the sadâq of her likes, which is what the likes of this wife are customarily given, meaning her peers from the mother’s or father’s families, or those of her land, when no specific sadâq has been stated.

Article 47:    There is no minimum or maximum limit for sadâq, and everything of value that the Sharia deems to have value qualifies to be a sadâq, on the condition that it is known.

Article 48:    The sadâq becomes binding upon a valid contract, and the parties cannot agree on dismissing it. This sadâq becomes all due upon consummation or an actual seclusion – unless both spouses affirm that no consummation took place. It also becomes all due upon the death [of either party], regardless of whether the death was before or after consummation.

Immediate and Deferred Sadâq

Article 49:    The sadâq is completely the woman’s entitlement. Therefore, she can deal with it as she pleases, and can agree to either demand it (or part of it) immediately or defer it to an appointed term. She has the right to refuse consummation until the immediate portion of her sadâq is paid to her, and if she accepts consummation before receiving it, then it becomes a debt upon the husband that he is liable for.

Article 50:    The deferred portion of the sadâq becomes due upon the first of the two terms; death or divorce, unless the contract states otherwise.

Article 51:       Before consummation, the divorcee is entitled to half thesadâq if it was specified, unless the separation was due to the marriage being dissolved or annulled for a defect, in which case she would not be entitled to any of the sadâq. If no sadâq had been specified, the judge or those in his position allot her an alimony, which is an amount of wealth or benefit paid to a divorcee that is determined by the customs and norms, while taking into consideration the solvency and insolvency of both spouses.

Article 52:    If thesadâq was not specified before or during the contract, and the spouses did not agree on it thereafter, or it was an invalid form of sadâq, or consummation had taken place in an invalid or mistaken marriage, then it will be referred to the sadâq of her peers.

Article 53:       If someone gets married during his death illness, for a sadâq equivalent to that of the bride’s peers, and he was in need of that, then this sadâq is to be taken from his inheritance after death. If it exceeds the sadâq of the bride’s peers, then the excess is governed by the rules of the bequest. If he was not in need of that, then it is taken entirely from the 1/3rd of his inheritance after his death, and is given precedence over the other bequests.

 

Furnishing the Marital Home

Article 54:    The default is that the husband is completely responsible for furnishing the marital home, within the bounds of reasonability. In turn, that becomes his property, unless he makes this furniture a portion of the sadâq. The wife is not responsible for any of that, unless she willingly contributes, and she reserves the right [of ownership] for whatever she contributes.([4])

 

Section Six

Witnesses for the Marriage Contract

Article 55:    The marriage contract being witnessed is a condition for its validity, due to it entailing social approval of this new family being established and involving the ummah in building it. For marriage, two Muslim men are the minimum required for witnessing a marriage between Muslims. If the woman was from the People of the Book, the witnessing of one man and two women was accepted by some jurists. In light of that, a marriage to a woman from the People of the Book that was already done with a witnessing of one man and two women should not be dissolved due to some jurists permitting that. Likewise, a marriage to a woman from the People of the Book that was already done with a witnessing of two men from her religion should not be dissolved due to some jurists permitting that.

Article 56:    To qualify as a witness, the conditions are: being an adult, sensible, credible, male that hears the wording of the contract and understands its meaning. As for requiring that the witness be a Muslim, this is a matter of agreement when both spouses are Muslim, and a matter of controversy when a Muslim is marrying a woman from the People of the Book. Hence, if the witnessing – in the latter case – was done by two men from Ahl al-Kitaab (People of the Book), then it should not be dissolved in light of the existing disagreement about the matter.

Article 57:    When there is a necessity, the parents (or grandparents) of the bride and groom, as well as their children (and grandchildren), can be accepted as witnesses of the contract – so long as he is not the wali (guardian) in this contract – based on the position of the jurists who permitted that.

Article 58:    If a marriage contract was not witnessed, then it is invalid and legally inconsequential before consummation, and if this was not rectified until consummation had actually taken place, then the contract is still deemed invalid, but it results in the sadâq [becoming mandatory], ‘iddâh (being observed), and asserting paternity, according to most of the jurists.

 

Section Seven

Marital Rights

Rights and Obligations Shared by the Spouses

Article 59:    The rights and obligations that are shared by both spouses are:

a)   Living together in harmony, caring for the welfare of the family, consulting one another about the decisions related to it, avoiding everything that scathes the other’s dignity, respecting the other's relatives, upholding kinship ties on both sides, visiting family, and inviting them to visit according to what is appropriate.

b)   Living together Islamically, which includes marital intimacy, and each being loyal to the other in terms of protecting their religion, honor, progeny, and wealth.

c)   Caring for the children and rearing them in a righteous fashion.

d)   Concealing marital secrets.

e)   Observing the rights of inheritance between them.

 

Wife’s Rights upon her Husband

Article 60:    The wife’s rights upon her husband are:

a)  The mahr/sadâq, which is what the husband pays to the wife for the sake of marrying her, whether it be wealth or another benefit qualified by the Sharia.

b) Spending on her food, clothing, treatment, housing, and everything necessary to sustain a livelihood, to the degree of his solvency or insolvency, without extravagance or stinginess.

c)  Not touching any of her wealth except with her permission.

 

Husband’s Rights upon his Wife

Article 61:    The husband’s rights upon his wife are:

a)  Recognizing his position as a maintainer, director, and advisor, in order to protect her religiosity and secure her hereafter. Part of that is keeping her chaste and modest, having her abide by the Islamic attire, and preventing her from everything that is considered an evil in the Sharia.

b) Obeying him in that which is good, namely everything permissible in the Sharia that will not inflict harm([5]) upon her.

c)  Looking after the marital home, managing its affairs, and safeguarding is possessions.

d) Prudently dealing with the husband’s wealth, namely by spending from it in proportion to her need, and the need of her children, according to that which is appropriate, without being extravagant and wasteful. She should not spend any of his wealth unless he permits, or it’s within the bounds of what is customarily acceptable.

e)  Caring for his children which she mothered, and nursing them unless she cannot.

 

The Wife Working Outside the Marital Home

Article 62:    The default is that the wife remains in her home to look after her husband and children. There is no harm in her working outside the house when needed, within the bounds of the following guidelines:

1- The work must be permissible in the Sharia, and suitable for the nature of a female and the interest of the community.

2- There must be consultation and acceptance between the spouses, to ensure the best interests of the family.

3- Priority must be given to the interests of the children in terms of their care and righteous upbringing. This should be given precedence to everything else when there is a conflict of interests.

4- The Sharia guidelines must be observed in how she leaves the home, and in the nature of her work.

Article 63:    When governed by the aforementioned guidelines, a woman has the right to work in the following circumstances:

1- If she stipulates the right to work in the marriage contract, or was working before the contract and the husband did not stipulate that she leave work, or when a woman working is customarily the norm.

2- If the husband permits that, even if that wasn’t stipulated in the contract.

3- If a need prompts that, or a necessity such as the husband falling ill, or him not being able to spend, or his absence, or the likes.

Article 64:    The woman has the exclusive right to her earnings from this work, and her husband has no right to her earnings unless she willingly accepts that, or an agreement between them dictates it.

Article 65:    Regardless of whether the woman is a Muslim or non-Muslim, she has the exclusive right to her money. Hence, she can autonomously spend from whatever wealth she owns, and whatever resources she acquires. It is recommended that she consult her husband when spending more than a third of it, but she is not interdicted except due to the general reasons for which the Sharia warrants interdiction, which apply to men and women alike.

Article 66:    It is permissible for the spouses to agree that the working wife should partake in spending on the house, in exchange for depriving her husband of someone that stays home to look after his house and children. Such consultation should take place between them in an atmosphere of good will and reasonability.

Article 67:    If the wife shares in her husband’s work, or business investments, with her skills, then she is entitled to a share of his resources that is proportionate to her contribution in this work. Estimating this share should be referred back to the experts, and the two spouses should negotiate in good will concerning that, and should agree from the start on clear terms in order to prevent dispute.

Section Eight

Types of Marriage in Terms of Validity and Invalidity

Article 68:    Marriage is either valid or invalid, and the invalid includes both the null (til) and the irregular (fâsid).

Article 69:    A valid marriage is when its conditions and pillars are met, and its impediments are absent. Once that happens, all the effects of marriage immediately ensue, namely those of rights and responsibilities.

Article 70:    A marriage is null (til) when the deficiency exists in the offer and acceptance [during the actual contract], such as there being no congruence between them, or when a temporary or permanent impediment to marriage is present, such as contracting in marriage with a mahram relative, or a Muslim woman marrying a non-Muslim man, or a Muslim man marrying a woman that is neither Muslim nor of the People of the Book, or a woman getting married while currently observing another marriage or ‘iddah.

Article 71:    A marriage is irregular (fâsid) when the deficiency exists in one of the conditions for its validity, such as the sadâq and the permanency of marriage.([6])

Article 72:    A null marriage does not result in any effects before consummation. Even upon consummation, it has no effects unless the two spouses presumed it was valid due to some misunderstanding, and their likes are excusable due to ignorance. In that case, it would result in the sadâq [being due], the obligation of ensuring the vacancy of the womb, establishing paternity, and the in-laws becoming unlawful for marriage.

Article 73:    An irregular marriage due to a compromise of the sadâq – such as agreeing on there being no sadâq, or agreeing on it being an Islamically unacceptable currency such as wine – does not result in any effects before consummation. After consummation, it can be corrected by allotting her the sadâq of her peers.

Article 74:    An irregular marriage due to a deficiency in its permanence – such as agreeing on a timespan for the marriage, or stipulating that it be for a single consummation to validate her remarrying a former husband – is to be dissolved before and after consummation. Before consummation, none of the effects of marriage result from such a contract. After consummation, it results in the sadâq [being due], the obligation of ensuring the vacancy of the womb , attributing paternity, and the in-laws becoming unlawful for marriage.

 

Misyâr Marriage

Article 75:    A misyâr (traveler’s) marriage is when the woman foregoes her right to housing, or spending, or intimacy, whether entirely or partially. It is a valid marriage when its conditions and pillars are met, and its impediments are absent.

 

‘Urfi Marriage

Article 76:    A ‘urfi (informal) marriage is a marriage that has not been documented by an official entity. Documenting marriage is not one of the conditions or pillars for its validity, but should be sought in order to safeguard rights and prevent denial in times of dispute. If the ‘urfi marriage fulfills the pillars and conditions of marriage, and is free of its impediments, then it is valid. If there is a deficiency in any of that, it is either null or irregular, depending on the situation.

 

Pretend Marriage

Article 77:    A pretend marriage is when its parties do not intend to actually get married in the manner legislated by Allah and His Messenger. It is not sought to make intercourse lawful, or for them to remain together. In reality, it is merely an administrative measure to acquire some benefit or avoid some harm.

Article 78:    A pretend marriage of this nature is unlawful in the religion, due to it stripping this sacred contract of its Sharia objectives, and due to it involving conditions that contradict its nature, and due to it violating public order and the contract of security that embodies the relationship between the people and the countries that host them.

Article 79:    When a pretend marriage fulfills its conditions and pillars, and its impediments are absent – which rarely occurs – then it is deemed technically valid, since jest and seriousness in marriage are equal, and renewing the contract upon deciding to make it real and permanent is prescribed.

 

Pretend Divorce

Article 80:    A pretend divorce which some husbands perform to acquire some legal benefits is held against its performer so long as he uttered it, or delegated another to execute it in his place, irrespective of whether he intended it or not. It is countable among the number of allowable divorces, and no consideration is given to him pretending since jest and seriousness in divorce are equal.

 

Marrying a Fornicator

Article 81:    In order for marrying a fornicator to be valid, two conditions must be met: repenting from fornication, and ensuring the vacancy of the womb to avoid paternity mix-up. But if she is going to marry the person she fornicated with, then ensuring the vacancy of the womb is not a condition.

 

CHAPTER THREE

THE EFFECTS OF MARRIAGE

 

Section One

Spending

General Rulings

Article 82:    The default is that the woman resides in her home to care for her husband and his children, and the obligation upon her husband is that he spends on her appropriately. She is not obliged to partake in spending on the house, even if she is wealthy, unless she voluntarily partakes in that based on her agreement with her husband.

Article 83:    It is obligatory on the husband to spend on his wife once there is a valid marriage contract between them, and she offers herself – even if just in principle – to him.

Article 84:    Due spending entails that which suffices the needs of food, clothing, shelter, medical treatment, and the likes – according to what is customarily reasonable.

Article 85:    The obligatory spending becomes binding in the amount decided by a mutual agreement of the spouses, or by the decision of a judge, in proportion to the solvency or insolvency of the husband. It is permissible to reevaluate it, for either an increase or decrease, due to a fluctuation in living costs, or the husband becoming poorer or wealthier, or when this amount is confirmed to either be insufficient or in excess.

Article 86:    If the husband is absent, or travels, or disappears, and leaves his wife without money, and the wife chooses to refer her affair to the judge, then a monetary allowance is determined for her which becomes a debt that the husband is responsible for. This is contingent upon the judge confirming that a valid marriage is ongoing between them, and after he confirms via testimony that her husband did not leave money for her expenses, and that she is not rebellious, nor is she a divorced woman whose ‘iddah has ended.

Article 87:    If the husband becomes insolvent in terms of spending, and his wife demands it, the judge can determine a monetary allowance to her which would be a debt that the husband is responsible for, after confirming that a valid marriage is ongoing between them. He will also permit the wife to take a loan in her husband’s name.([7])

 

The Obligation to Spend on Divorcees

Article 88:    It is obligatory to spend on a divorcee from a revocable divorce that is currently in her ‘iddah (waiting period), regardless of whether she is pregnant or not. For the woman that is irrevocably divorced, it is obligatory to spend on her, if she is pregnant, until the conclusion of her pregnancy, and if she is not pregnant, he must provide her housing only. It is not obligatory to spend on a widow during her ‘iddah, nor a wife whose contract has been dissolved for a legitimate cause.

 

Absolved of the Obligatory Spending

Article 89:    The obligatory spending on a wife is absolved when she refuses to move into the marital home for a reason that deems the woman rebellious, or if she deserts the marital home, or prevents the husband from entering it, or refuses to travel with him without an Islamically valid justification or her stipulating that in the marriage contract.

Article 90:    The obligation to spend on the wife ends with its payment, or being absolved of it, or either spouse dying. However, this obligatory spending being absolved by death does not controvert the previously established debt he had become liable for [towards her].

Article 91:    It is mandatory upon the husband to prepare for his wife appropriate housing, one that is Islamically acceptable and suitable for them both. It is mandatory upon the wife to move to it, and to move from it once he leaves it, unless she stipulates otherwise in the marriage contract or he seeks by that move to harm her.

 

The Extent of Each Spouse’s Right to House Their Dependents When There Is a Need

Article 92:    It is impermissible for either spouse to house with the other, in the marital home, anyone of his/her relatives, even if s/he is liable for spending on that person – unless that takes place based on mutual consent and consultation, in order to safeguard for each spouse their right to privacy in the marital home.

 

Spending on the Relatives:

a) Spending on the Children

Article 93:    a)    Spending on the child that has no wealth for himself is obligatory upon his father. The obligation to spend on the girl is not absolved until she no longer needs to be spent on; either because her husband is now obligated to spend on his wife, or because she has become financially independent to an extent that suffices her needs. The obligation to spend on the son is not absolved until he becomes capable to earn, or possesses wealth that suffices his expenses, unless he is a student that is currently continuing his studies, in which case his right to sustenance will continue until he is customarily capable of earning a living.([8])

b)         Spending on the older son/ daughter that is incapable of earning due to a handicap or otherwise is obligatory upon his/ her father, unless s/he possesses wealth from which s/he can spend.

c)          If a woman is divorced, or her husband dies, and she has no wealth nor a job to earn from, her sustenance becomes incumbent upon her father, unless her expenses are shouldered by someone else.

Article 94:    If the father is partially or entirely incapable of spending on his children, and the mother is solvent, she becomes obligated to spend in the amount that the father was incapable of providing. Likewise, she is obligated with this spending if he dies and does not leave behind that which could be used to spend on his children.

b)         Spending on the Parents, and their Rights

Article 95: The children are obligated with many rights towards their parents. Of the most emphasized of them are:

1- Living with them honorably, even if they follow another religion or ideology.

2- Being kind to them, generous with them, upholding their rights, caring for them in old age, and particularly the mother.

3- Respecting them, and not annoying them. Thus, a child is not to raise his voice against them, nor chide them, nor annoy them in the least, not even with a gesture.

4- Maintaining their rights after their death by supplicating for them, fulfilling their wills and testaments, honoring their friends, and keeping their kinship ties.

Article 96:    There is no contradiction between kindness to parents and living honorably with the wife. Each of them has rights that must be fulfilled, and it is impermissible to transgress against one party under the claim of being kind to the other.

Article 97:    It is obligatory upon the solvent children, or those capable of earning, whether male or female, and whether young or old, to spend on their parents in part or in whole, to the degree of their need. The duty should be shared between them based on the solvency of each, and if one child volunteers to shoulder the expenses, then he has no right to [later] demand that from each of his brothers and sisters, unless there is a prior agreement between them stating that, or a prior judicial decision that determines each child’s share of that obligation.

c)         Spending on the Close Relatives

Article 98:    It is obligatory upon every solvent relative, who would inherit from a person, to spend on him/ her when s/he qualifies for that, based on their order and share of the inheritance. If the inheritor is insolvent, then the obligation falls upon the next person that follows him in inheritance.

Article 99:    If the relatives qualified for being spent on are multiple, and there is not enough wealth for everybody, precedence is given to spending on the wife, and then spending on the children, while including his parents that qualify for spending to his family – if his finances allow for spending on them alongside his wife and children. Then, there comes spending on the remaining relatives.

d)         Spending on the Foundling

Article 100:  Spending on a foundling of unknown parents is from his own wealth, if he possesses wealth. If none exists, and none volunteers to spend on him, then spending on him falls upon the entity responsible for undertaking such cases, if it exists. If it does not exist, then spending on him becomes an obligation on those solvent from the Muslim community.

 

Section Two

Paternity

General Rulings

Article 101:  Paternity is a legal bond between a father and his child, connecting the ancestors and descendants, and safeguarding this bond is from the objectives of the Sharia.

Article 102:  Of the means by which the Sharia preserves lineages from mixing is prohibiting fornication and taking precautionary measures against it, legislating specific rulings concerning the ‘iddah (waiting period), prohibiting the concealment of pregnancy, the propensity to affirm paternity, and the prohibition of denying it.

Article 103:  Paternity is only established by the marital bond, or affirmation, or clear proof, or common knowledge.

 

Establishing Paternity by the Marital Bond

Article 104:  a)    The child is attributed to the marital bond if [born] after the minimum term of pregnancy has passed since the valid marriage contract, namely six months (the experts should be consulted for cases less than that), if the impossibility of the spouses meeting has not been proven.

              b)    The paternity of the child is also established from an invalid contract when he is born after the minimum term of pregnancy since the date of intercourse, and the same applies for mistaken intercourse.

Article 105:  The minimum duration of a pregnancy is six months (and experts must be consulted for less than that), and its maximum duration is legally a full lunar year.

 

Establishing Paternity by Claiming the Child

Article 106:  Claiming the child refers to affirming fatherhood in cases when the paternity is unknown, and it establishes paternity – even if done on the death bed – on the following conditions:

1- The affirmer must be competent, namely a sane, willing, adult.

2- The age difference between them must allow for the correctness of that affirmation.

3- The child whose paternity is being affirmed here must acknowledge that upon becoming a sane adult.

Article 107:  If the affirmer is a married woman, or a woman in her ‘iddah, then the child’s paternity to her husband is not established unless he confirms that, or clear proof is established in support of that, and this is not controverted by  li‘ân, or the impossibility of them meeting being proven.

Article 108:  When a child with no lineage affirms that someone is his/her father or mother, that affirmation will not establish parenthood unless that one claimed to be a parent concurs and he/she is a sane adult. It will also be established is there is clear proof on it and the age difference deems it possible. Affirming a child whose paternity or maternity is unknown isn’t established unless the child being claimed acknowledges that as a sensible adult, or clear proof is established in support of it, and the age difference deems this possible.

Article 109:  Affirming lineage for other than the child, father, or mother [Ex: Affirming that someone is one's sibling], only applies to the affirmer unless the affirmed for acknowledges that, or clear proof is established about it.

Article 110:  Claims of non-paternity that are made by the affirmer’s heirs are to be dismissed once paternity has been established through a valid affirmation.

 

Establishing Paternity by Clear Proof

Article 111:  DNA is the genetic code that exists inside the cells of every living organism, and it is what makes every living thing distinct from another.

Article 112:  The utmost caution and privacy must be maintained when using DNA in the field of paternity, and for that reason, the texts and principles of the Sharia must be given precedence over DNA testing.

Article 113:  It is permissible to depend on DNA for establishing paternity in the following cases:

a)  When there is a mix-up of children in hospitals, daycare centers, and the likes. The same applies to discrepancies that take place with test-tube babies.

b) When children are lost or mixed up due to accidents, disasters, and wars, and identifying their families is not possible. The same applies when corpses are found that cannot be identified, or when investigating the identities of prisoners of war and missing persons.

c)  When there is dispute regarding a child whose paternity is unknown. It makes no difference whether the disputation is due to the absence of evidence, or due to conflicting evidences, or due to mistaken intercourses with multiple partners, and the likes – while not violating Article 105 which asserts that the child belongs to the marital bond (legitimate husband).

 

Article 114:  It is impermissible to use DNA to confirm paternity in cases when the paternity has already been established in the eyes of the Sharia. It is also impermissible to use it as an alternative to li‘ân for denying paternity.

 

Denying Paternity by Li‘ân

Article 115:  Li‘ân is a procedure where the man swears by Allah four times that he is truthful in accusing his wife of fornication, and that the son she delivered is not from him, and then swears a fifth time that the la‘nah (curse) of Allah be upon him if he was of the liars. In order for his wife to avoid the legal punishment, she swears by Allah four times that he is of the liars, and then swears a fifth time that the anger of Allah be upon her if he was of the truthful.

Article 116:  The man has the right to deny paternity of the child, by li‘ân, within one week of either the birthdate or when he discovers it. However, it is stipulated that he not have previously admitted paternity for that child explicitly or implicitly, such as thanking a person who congratulated him about it, or remaining silent and not denying it, or allowing time to pass wherein he could have denied but didn’t despite knowing of the birth. Lastly, the claim of li‘ân must be submitted [for judgment] within two weeks of discovering the birth.

Article 117:  Li‘ân results in that child being severed from the man in terms of paternity, the permanent separation between this man and woman, and them becoming perpetually unlawful for one another.

Article 118:  Paternity is established, even after a judgment of its denial, when the man belies himself.

Article 119:  It is impermissible in the Sharia to depend on DNA to deny paternity. It is also impermissible to give it precedence over li‘ân. However, DNA can be used as a corroborative proof to support the husband’s demand for li‘ân, or it could indicate other than his claim and thereby dissuade him from li‘ân. 

 

CHAPTER FOUR

SEPARATION BETWEEN THE SPOUSES

Types of Separation

Article 120:  Separation between the spouses occurs by:

1)   The desire of the husband, which is called a divorce (talâq).

2)   The desire of both spouses, which is called a wife initiated divorce (khul‘).

3)   The decision of a judiciary, which is called a legally enforced divorce (tatleeq) or a dissolution of the marriage (faskh).

4)   The death of either spouse.

Section One

Divorce (Talâq)

General Rulings

Article 121:  Divorce is the termination of marriage, immediately [as in irrevocable divorce] or eventually [after the 'iddah in revocable divorce], with the wording codified for it by the Sharia. It is the last remedy used to resolve marital conflict.

Article 122:  The Sharia is keen on the continuity of marriage and avoiding irremovable conflicts between the spouses. It works to limit the scenarios conducive to divorce, and invites both spouses to being patient with their life partners and enduring them to the extent of their respective capacities. It stresses that divorcing a righteous woman without due fault is a transgression against her.

Article 123:  An Islamically legal divorce is when the husband divorces his wife a single time during a period of purity (non-menses) in which he did not have intercourse with her.

Article 124:  Divorce during the period of menstruation, or during a period of purity wherein he had intercourse with her, or during her ‘iddah (waiting period), is an unlawful divorce by virtue of it being an innovated practice [in the religion], but is an effective divorce nonetheless. Repeating a divorce in the same gathering counts against him [as multiple divorces] if he intended multiplicity by it. If he intended emphasis by that repetition, it is only counted as one [divorce]. During judgment, the mufti has the right to refer the questioner to the views of the jurists who don’t believe the divorce is effective in these cases, or can refer him to the Muftis who uphold those views in order to save the family relationship, since there is a difference of opinion on this matter.

Article 125:  Divorce takes place by utterance, writing, or by an understandable gesture when neither of those is possible. The divorce that takes place via the different means of communication such as electronic mail, telephone, or otherwise, is considered a valid divorce.

Article 126:  The husband possesses three divorces to use against his wife.

Article 127:  It is permissible to establish the occurrence of a divorce through the general forms of admissible evidences such as testimony, admission, writing, and their likes. The actual occurrence of divorce is not contingent upon those proofs.

Article 128:  Divorce is performed by the husband, or by someone he deputizes specifically for that, or by the wife if the husband allots that right to her.

Article 129:  A legally enforced divorce that is performed by the man-made judicial system outside the lands of Islam, when contrary to the desire of the husband, only terminates the civil marriage contract. As for the marital bond in the eyes of the Sharia, that is referred back to the husband, or the Islamic judge, or those in his position. But if the husband willingly signs the divorce papers, then the divorce becomes legitimate, and the role of the man-made judicial system in that case would simply be a documentation of that.

Article 130:  It is stipulated that the divorcer be sane and willing. Hence, the divorce performed by the child and the insane is ineffective, as well as the bewildered, the coerced, the drunk, and the person whose anger reached a point where it hindered his mind from realizing what he is saying and doing.

Article 131:  A divorce is only effective against a woman whose marriage currently stands, either in actuality or technicality.

Sworn Divorce and Conditional Divorce

Article 132:  a)    Swearing to divorce is not deemed a divorce when the oath is breached, unless he meant it literally. But if he only meant to urge or deter [someone] by it, then his obligation in that case would be to expiate for this oath.

              b)    A divorce that is contingent upon doing something, or leaving it, follows the same protocol as swearing to divorce. Thus, it does not take effect when its condition is met, unless he meant by it an actual divorce. If he only meant by it to pressure the person, then it is considered an oath, and he is indebted to offer expiation for this oath once the oath is broken.

Compound Divorces

Article 133:  A divorce wherein a number is mentioned, whether by utterance or writing or gesture, only counts as a single divorce.

Types of Divorce

Article 134:  Divorce is two types: revocable and irrevocable.

Article 135:  A revocable divorce does not terminate the marriage unless the ‘iddah (waiting period) ends without revocation. The default is that a woman remains in the marital home following a revocable divorce until her ‘iddah ends. Hence, it is unlawful for her husband to drive her out, or for her to leave, except due to an adultery she committed, or a necessity that dictated that, and she is entitled to being spent on just as she was before the divorce.

Article 136:  An irrevocable divorce terminates the marriage contract from the moment it takes place, and it has two types:

a)  A minor irrevocable divorce, which terminates the current marriage, and that divorced woman does not become lawful for her divorcer except with a new contract and new mahr (wedding gift). This type of divorce results from a divorce before consummation, or a legally enforced divorce carried out by a judge, or the ‘iddah following a revocable divorce ending without revocation, or a divorce [initiated by the wife] in return for compensation.

b) A major irrevocable divorce, which results from the third divorce, and immediately terminates the current marriage. In this case, that divorced woman does not become lawful for her divorcer except after completing her ‘iddah from another husband that actually consummated with her in a valid marriage that was not merely to make her lawful [for the original divorcer].

Revocation and its Rulings

Article 137:  Every divorce that takes place is revocable, except the third divorce, or a divorce performed before consummation, or a divorce in return for compensation, or annulment, or a legally enforced dissolution of the marriage.

Article 138:  The husband is more entitled to returning his divorcee upon whom he effected a revocable divorce, so long as she remains in her ‘iddah, and he does not lose this right by foregoing it. Once the ‘iddah of this woman ends, she becomes completely severed from him, and he no longer has access to her without a new contract and new mahr.

Article 139:  Revocation can happen by statement, and by action – namely intercourse and foreplay if he intended by it to recant his divorce. It can also take place by writing, or by an understandable gesture when neither uttering nor writing is possible.

Article 140:  It is recommended that the revocation is witnessed, and that the wife is informed of it immediately.

Article 141:  If the husband forces his wife out of the house, or if she leaves due to an emergency that necessitates that, or if it was an irrevocable divorce, the judge or those in his position outside the lands of Islam should – based on her request – issue instructions about how much she must be given for her expenses throughout her ‘iddah, and the expenses of the children, and who is entitled to custody and the visitation of those in custody. This judicial order is considered binding from moment of its issuance.

Article 142:  A woman who is divorced before consummation or actual seclusion is entitled to alimony if no mahr has been decided for her. If a mahr has been decided for her, then she is entitled to half of it, as well as a recommended alimony. Once there is consummation, this alimony is mandatory for every divorce, even if her mahr had been decided at the time of the marriage contract. The alimony is determined based on the solvency of the divorcer, as well as the status of the woman and what is customary for her likes. It is impermissible to use this as a means to justify what the man-made laws permit of dividing all the possessions acquired after the marriage in half between the two parties.

 

Section Two

Wife Initiated Divorce (Khul‘)

 

Article 143:  Khul‘ is a termination of the marriage contract in exchange for a compensation that is paid by the wife, or without compensation if the severing takes place using the term khul‘. This happens when a woman hates her husband, and is incapable of bearing to live with him, without a just cause that would warrant a legally enforced divorce due to harm.

Article 144:  For a valid khul‘, it is stipulated that the wife be competent in her dealings, and that the husband qualifies to effect a divorce. 

Article 145:  Any permissible compensation in the Sharia qualifies to be the compensation for the khul‘, without being deliberately incapacitating or excessively exorbitant, although there is no minimum or maximum for this compensation.

Article 146:  A khul‘ is considered a minor irrevocable divorce which grants the wife independence of her affairs following it. Thereafter, her husband has no access to her except with a new contract and new mahr.

Article 147:  It is impermissible for the khul‘ compensation to be forsaking custody of the children or their expenses. If that happens, the khul‘ is valid and its terms are dismissed.

Article 148:  The wife is entitled to retrieve the amount she paid for khul‘ if she proves that this khul‘ was resultant of her being forced or harmed by the husband. As for divorce, it is effective in all cases.

Article 149:  The default is that khul‘ happens by agreement from both spouses. If the husband does not accommodate her request in order to deliberately incapacitate her, the wife refers her matter to the Islamic judge or those in his position outside the lands of Islam, and he decides between them after the arbiters he sends to reconcile between them are incapable of doing so. If the discord was due to misbehavior from the wife’s end, the two arbiters are to determine a compensation for the khul‘ that can be less or more than the mahr amount. If the discord was due to misbehavior from the husband’s end, the two arbiters are to suggest to the judge that he separate between them without a compensation.

Article 150:  Those in the position of an Islamic judge outside the lands of Islam should not rush to issue the documents for a  khul‘ or legally enforced divorce due to harm before the civil divorce papers are issued, in order to avoid the harm that could be provoked by spiting this angered husband.

Article 151:  If the two spouses agree on the concept of proceeding with a khul‘, but disagree on the compensation amount, then the matter should be referred to a judiciary to determine it after the attempts to reconcile between the spouses fail. When calculating this amount, of what should be considered is the mahr amount, the duration of the marriage, the reasons for seeking a khul‘, and the financial status of the two spouses.

Article 152:  If the wife seeks a khul‘ before consummation and seclusion, and she surrenders the mahr she received, and what the husband spent for the marriage, but the husband still refuses and the judge and those in his position fail to reconcile, then a verdict of dissolving the marriage is granted.

 

Section Three

Legally Enforced Divorce (Tatleeq)

Demanding Divorce for a Defect

Article 153:  The wife can demand a divorce due to a defect in the husband that affects the objectives of marriage, makes continuing the marital life difficult, and is not expected to be resolved within a year. It makes no difference whether the defect is mental or physical, and the experts are to be sought for precisely identifying the defect. If the defect is expected to be resolved within a year, the defective party is deferred for a year before a legally enforced divorce is carried out.

Article 154:  In order to accept the wife’s demand to end the marital relationship, it is stipulated that she had not known about the defect at the time of the [marriage] contract, and that she did not exhibit any indication of accepting the defect after knowing that it was incurable.

Article 155:  When the wife’s right to demand a divorce for a defect is dismissed, either because she was aware of it before the contract or accepted it after, but she could not bear it any longer, she is still entitled to demand a divorce if she can prove her being harmed by it, or a khul‘ if she cannot prove it.

Article 156:  If a man divorces his wife before consummation due to a defect, he is not obligated to pay half the sadâq (wedding gift) unless he knew of the defect before the contract. If he divorces her after consummation, he has the right to pursue the amount of sadâq from the person who deceived him, or deliberately concealed the defect from him.

 

Demanding Divorce for Not Paying the Currently Owed Sadâq

Article 157:  Before consummation, the wife can be granted a legally enforced divorce for not being paid the currently owed sadâq if her husband has no apparent wealth which the sadâq can be taken from, or he is apparently insolvent, or has unknown circumstances and has not paid the sadâq by the deadline set by the judge for its payment, and has no guarantor from either an entity or a solvent individual. Ideally, the likes of these cases should be sponsored by the public treasury.

Article 158:  After consummation, a legally enforced divorce is not to be granted to the wife for not being paid her currently owed sadâq, and it remains as a debt that the husband is liable for.

 

Demanding Divorce for Harm and Dissent

Article 159:  A wife has the right to demand a legally enforced divorce for a harm that makes continuing the marital life difficult between her and her husband.

Article 160:  The harms considered a legitimate basis for demanding divorce are: every practice or behavior of the husband that is condemnable, inconsistent with praiseworthy manners, and adversely affects the wife – tangibly or emotionally – in a manner that makes her incapable of continuing in the marital relationship, such as fornication, drunkenness, and the their likes.

Article 161:  Every infringement upon the conditions of the marriage contract is considered a harm that qualifies demanding a divorce, such as him accepting her stipulation that he not marry [another wife] alongside her, or that he not relocate her elsewhere, or the likes.

Article 162:  The occurrence of harm is confirmed through any admissible evidence recognized by the Sharia.

Article 163:  If the harm is proven before a judge or someone in his position, and he is unable to reconcile [between them], then a legally enforced divorce is warranted.

Article 164:  If the harm is not proven, and the dissent continues, and reconciliation is unreachable, then the judge or those in his position are to appoint two arbiters to investigate the causes of this dissent and exhaust their efforts to reconcile between the two spouses. A period of arbitration should be allotted for them, and if they are unable to resolve the matter, then the judge or those in his position are to execute a legally enforced divorce based on the report of the two arbiters.

Article 165:  The two arbiters are to present the judge with a report that outlines what they discovered, including therein the degree each spouse harmed the other, or [at least] how one harmed the other, and what solutions they suggest. If the two arbiters dispute, the judge or those in his position are to assign others in their place, or add a third to them.

Article 166:  The judge reserves the right to accept the report of the two arbiters, or to assign another two arbiters – for a valid reason – to begin a new arbitration.

Article 167:  When the judge decides to execute a legally enforced divorce, based on a harm suffered by a woman who had consummated her marriage, then she is entitled to her sadâq in full. But if the harm was fully or mostly from her end, then the judge or those in his position are to determine what portion of the sadâq she must return to her husband.

 

The Effect of Either Spouse Committing Adultery

Article 168:  The adultery of either spouse does not automatically dissolve the marriage contract.

Article 169:  If the husband is accused of adultery, and that becomes known in the community surrounding the family, and the wife is harmed by that, then it is permissible for her to demand separation via a legally enforced divorce. It is upon the arbitration entity to grant her that, and should suffice themselves with hearing from credible individuals or finding obvious corroborative proofs for this, even if that isn’t confirmed through the established Sharia principles used to prove adultery.

Article 170:  If the wife is accused of adultery, and that becomes known in the community surrounding the family, then it becomes permissible for the husband to divorce her and push her to forego her legal entitlements – if that is based on hearing from credible individuals in his locale or finding obvious corroborative proofs for this, even if that isn’t confirmed through the established Sharia principles used to prove adultery. It is also permissible for him to keep her [as his wife] if he senses the genuinity of her repentance.

Demanding Divorce for Not Spending

Article 171:  A wife has the right to demand a divorce when the husband fails to spend the currently owed expenses due upon him. If he has wealth that can cover these expenses, he is to be judicially obliged to spend from it and the legally enforced divorce is not to be granted. Otherwise, the divorce is carried out after deferring him for a period determined by an Islamic judiciary, or by those serving in its place outside the lands of Islam.

Article 172:  A wife is not to be divorced from her husband, due to his insolvency, if she knew of this solvency before marriage and accepted it. Similarly, a solvent wife is not to be divorced from her insolvent husband if he is expected to become solvent and repay what she spent on herself during his phase of insolvency.

Demanding Divorce for Absence or Disappearance

Article 173:  A wife has the right to demand a divorce due to her husband’s absence, when his location or place of residence is known, even if he has wealth that can be used to fulfill her expenses. However, she is not granted that until he is forewarned to either reside with his spouse, or relocate her to him, or divorce her, and after deferring him for a period no less than four months, and not exceeding one year.

Article 174:  When the husband’s location or place of residence is unknown, and the wife is harmed by that, her affair is referred to an Islamic judiciary to consider separating between her and her husband due to harm. That would follow exhausting the efforts to reach him, demanding his return to his wife, or relocating her to him.

 

The Wife of a Prisoner

Article 175:  The wife of a prisoner whose prison sentence is finalized, for a period no less than three years, has the right to demand a divorce if she is harmed by that, but should not be granted it except after six months have passed from his imprisonment.

 

Demanding Divorce for Eelâ’([9]) and Dhihâr([10])

Article 176:  A wife has the right to demand a legally enforced divorce when her husband swears to forsake laying with her in bed [for intercourse], whether indefinitly or simply for a period exceeding four months. The judge is to defer him until the four months expire, and if he does not recant during them or shortly thereafter – within a period decided by the judge, then he is to be legally divorced from her.

Article 177:  a)    A wife has the right to demand a legally enforced divorce for dhihâr if the husband refuses to expiate for it.

              b)    The judge is to warn the husband to expiate for the dhihâr within four months from the date of the warning. If he refuses without an excuse, the judge effects a divorce.

Article 178:  While considering the claims for a legally enforced divorce, if the spouses living together is not possible, it is upon the judge and those in his place outside the lands of Islam to provide temporary measures for whatever he sees necessary to ensure the wife and children are spent on, as well as arranging for their custody and visitation.

 

Section Four

Annulment (Faskh)

Article 179:  The default in a marriage contract is it being a binding agreement, one that does not become null by mutual exoneration. However, it can be annulled in exceptional circumstances, when it involves that which contradicts its very essence, or when factors surface that prevent its continuity.

Article 180:  The marriage does not take effect when one of its pillars are absent, or when it involves that which hinders its validity, such as marrying one of the mahram relatives. In such cases, it becomes obligatory to separate between the spouses, and the mahr (wedding gift) is not entitled if separation takes place before consummation or seclusion, and is entitled if the separation happens thereafter.([11])

Article 181:  The marriage contract is annulled when there surfaces that which prevents its continuity in the Sharia, such as either spouse apostatizing from Islam, or when the woman embraces Islam and her husband refuses Islam until her ‘iddah expires.

Article 182:  Separation due to li‘ân (public imprecation) is an annulment, and it is unlawful for the two spouses who practiced li‘ân against one another to ever get married together again.

Article 183:  Annulling the marriage due to a defect in the wife disqualifies the sadâq if the annulment takes places before consummation. When it takes place after it, she remains entitled to the sadâq and the husband is to pursue it from the one who deceived him, while seeking the aid of a medical entity that is specialized in the defects that warrant separation.

Article 184:  Annulling the marriage due to a defect in the husband does not disqualify the woman’s right to sadâq. If the annulment takes place before consummation, then she is entitled to half the sadâq, and if it takes place after it, then she is entitled to the sadâq in full.

Article 185:  Annulment is not considered a divorce, and hence it does not decrease the number of divorces allotted by the Sharia to the husband.

 

Section Five

The Effects of the Spouses Separating

 

Effect One

The ‘Iddah (Waiting Period)

Article 186:  The ‘iddah is the waiting period which the wife is obligated to remain unmarried, which takes place following a revocable or irrevocable divorce, or a legally enforced divorce, or a khul‘ (divorce initiated by the wife), or a li‘ân (public imprecation), or a marital annulment, or a separation due to an invalid marriage, or death. Its count begins from when the separation first takes place, regardless of whether the marriage was valid or invalid.

Article 187:  The ‘iddah in cases of mistaken intimacy begins from the last instance of intercourse.

 

The ‘Iddah for Death

Article 188:  The ‘iddah of a widow from a valid marriage is four months and ten days, even if she was widowed before consummation, unless she is pregnant. The months taken into consideration for all Sharia timespans are the lunar months.

Article 189:  The ‘iddah of a pregnant widow ends by the conclusion of her pregnancy, or the miscarriage of a fetus with a discernable human figure, and determining that is left to the physicians.

Article 190:  The ‘iddah of a woman who consummated an invalid marriage, or a mistaken marriage, is one menstrual cycle after the man’s death – to ensure the vacancy of her womb.

 

The ‘Iddah for Divorce

Article 191:  There is no ‘iddah for a woman divorced before consummation or actual seclusion.

Article 192:  The ‘iddah of a pregnant woman endsby the conclusion of her pregnancy, or the miscarriage of a fetus with a discernable human figure, and determining that is left to the physicians.

Article 193:  The ‘iddah of a non-pregnant woman is:

1) Three full menstrual cycles for those who menstruate.

2) Three months for those who haven’t yet menstruated, whether due to illness or something else, or those who no longer menstruate (due to an abnormality or being post-menopausal). If she finds herself menstruating before the three months are finished, she is to begin a fresh count of three menstrual cycles.

3) Three months for a woman who experiences istihâdah (non-menstrual vaginal bleeding) and does not have a regular menstrual cycle. If she does have a regular menses which she can recall, then she is to consider that for calculating her ‘iddah.

4) Three months, after confirming with the physicians that she isn’t pregnant, for those women whose menstrual cycle has stopped without a known reason before the age of menopause.

5) If her menses had stopped due to a known cause, she should wait for three months after medically confirming the absence of pregnancy. [This view was approved by the Permamnent Fatwa Committee of AMJA]

 

One ‘Iddah Superseding another ‘Iddah

Article 194:  When the husband dies during the ‘iddah of the woman upon whom he effected a revocable divorce, it transforms from a ‘iddah of divorce to a ‘iddah of death, and what has passed is no longer counted.

Article 195:  When the husband dies during the ‘iddah of the woman he irrevocably divorced, she is to complete her ‘iddah of divorce and not observe the ‘iddah of death. If the divorce happened during his death sickness, whereby the divorce was to hinder her from inheriting, then she is to observe the ‘iddah of a widow and inherit from her divorcer.

 

The Rights of Divorced Women

Article 196:  A revocable divorce does not remove a woman from the ‘ismah (marital bond) of her husband. Thus, she remains entitled to being spent on and housed, but does not reserve the right to her share of intimacy. It is not lawful for her husband to expel her from her home, and she must not leave unless she fell into confirmed infidelity, or due to a necessity that forced her to leave.

Article 197:  A widow observing the ‘iddah of death can leave during the daytime to accomplish her needs, and should not leave at nighttime unless there is a necessity.

Article 198:  When an irrevocable divorce takes place, the divorcee becomes entitled to the remainder of the sadâq (wedding gift), in addition to the alimony which is determined by a judiciary to help the divorcee overcome the heartbreak of divorce.

Article 199:  The alimony is a monetary provision that is proportionate to the husband’s solvency, the duration of the marriage, and the degree which each spouse contributed to the divorce. It serves to console the divorcee, and to compensate her for the harms she was subjected to because of the divorce.

 

Effect Two

Physical Custody

General Rulings

Article 200:  Physical custody entails that those entitled to this right safeguard the child, care for him, and manage his day-to-day affairs until a certain age.

Article 201:  Physical custody is established for the best interests of the child. Hence, just as it is the right of the custodian, it is also the right of the child upon his custodian. For that reason, it is not permissible to abdicate it, or relinquish it in exchange for khul‘.

Article 202:  Physical custody is both the right and responsibility of both parents for as long as they remain married. The child cannot be severed from either or both of them except for a pressing necessity, such as one of them being unqualified for physical custody and the likes. Of course, it is essential that this necessity first be gauged precisely.

Article 203:  The parents are responsible for the welfare of the child, his interests, and his livelihood, and this responsibility is carried out through their mutual consultation. They can seek aid through the official social welfare entities, and through the judiciaries, whenever that is needed to secure this care and ensure these interests.

 

The Conditions for a Custodian

Article 204:  It is stipulated that the custodian be an adult that is sane, trustworthy, not an open regular sinner, free of serious contagious diseases, and capable by himself or through another to care for the child in custody’s religion, manners, health, and education.

Article 205:  If the custodian is a woman, it is also stipulated that she not be married to a husband that is foreign to the child in custody, when there is a contendor for physical custody, unless the child is in the period of nursing, or will be harmed by separation from her, or suffers from some handicap that makes his physical custody difficult for other than the mother. If the custodian is a man, it is stipulated that a woman who is qualified for physical custody be present with him, and that he is a mahram relative to that child in custody if that child is a female.

Article 206:  The mother is most entitled to the physical custody of the youngster by unanimous agreement of the scholars. Her getting married does not disqualify her from being the custodian when the child is in the period of nursing, or will be harmed by separation from her, or suffers from some handicap that makes his physical custody difficult for other than the mother.

A Non-Muslim Mother’s Entitlement to Physical Custody

Article 207:  Being of a different religion does not disqualify the mother’s right to physical custody; she is still most entitled to the physical custody of the youngster, even if she is a Jew, Christian, or Fire-Worshipper. This is because the compassion [of a mother] does not change from one religion to another, but it remains the guardian’s responsibility to keenly ensure the religious education and upbringing of his child. Part of that is enrolling this child in Islamic nurseries and schools, whereby he could be there by morning and with his mother at night.

Article 208:  The non-Muslim mother’s physical custody continues until seven years of age for the male, and nine years of age for the female, unless the Islamic judge – or the arbitrators that serve in his stead – deem otherwise for the best interests of the child in custody. In cases where the father fears that his children might adopt a religion other than Islam, he becomes religiously obligated to pursue the rescue of his children through every legal means available to him in his country of residence.

 

The Right to Physical Custody when the Parents Separate

Article 209:  When the parents separate, physical custody belongs to the mother, and then the mother’s mother, continuing upwards. Then, it belongs to his paternal grandmother, continuing upwards. Then, it belongs to the father, and when that isn’t feasible, the Islamic judiciary – or those in its place outside the lands of Islam – can allot the physical custody to the relatives most qualified for custodianship, and those most likely to actualize the best interests of this child, in light of the following suggestion: the child’s sister, then his maternal aunt, then his mother’s maternal aunt, then his mother’s paternal aunt, then his paternal aunt, then his father’s paternal aunt, then his father’s maternal aunt, then his brother’s daughter, and then his sister’s daughter. Throughout, the full sibling is given precedence, then the maternal relatives, and then the paternal relatives. When no relatives can be identified, custody is transferred to the paternal kin, while asserting that suitable housing being made available for the child in custody is part of the mandatory financial obligations due to him.

Article 210:  Once the custodian becomes unqualified for physical custody, or is feared to harm the child in custody, his custodianship is dismissed and transferred over to those after him. It is the obligation of the arbiters to evaluate the interests of the child in custody, for the rulings on this topic all revolve around that.

 

The End of the Mother’s Mandatory Physical Custody

Article 211:  The default is that the child remains in the custody of the mother until the male reaches puberty and the female gets married.([12]) This stands unless a dispute arises over a child that has reached the age of discernment, or wishes to be transferred to his paternal relatives. If there is a dispute over him, he is to be given the choice. If he remains silent, he is to remain with his female custodian. He reserves the right to choose between his female mahram relatives and his male paternal relatives. The arbiter should use his discretion to guide his choice, because physical custody is established for the best interests of the child, and all the rulings on this topic revolve around that. Lastly, a girl is not to be given to a man unless he is a mahram relative to her.

Article 212:  If none exists among those qualified for physical custody who accept it, or they exist but don’t possess all the necessary qualifications, a judge chooses someone he sees fit from among the child’s relatives, or others, or one of the institutions dedicated to that service.

Article 213:  Nushooz (wife's rebelliousness) does not disqualify this right. Hence, if the mother abandons the marital home due to conflict or the likes, physical custody belongs to her unless a judge deems otherwise. And if the child is young and cannot fend without his mother, she is obligated to accept physical custody of him.

Article 214:  It is mandatory upon the father, or any other guardian of the child in custody, to maintain his upbringing, discipline, guidance, and education. The default is that he does not sleep except with his custodian, unless the judicial entity decides otherwise, or when both parents agree to other than that.

Article 215:  It is not permissible for the custodian to travel outside the country with the child unless his guardian consents, and the appropriate judicial entity permits. When the guardian objects to that, the matter is referred to arbitration.

Physical Custody Wages

Article 216:  The wages for physical custody and its expenses are the responsibility of the person obligated to spend on the child. This differs from the wages for nursing, nafaqah (sustenance), and housing, and the mother is not eligible for these wages so long as the marital relationship remains in actuality or in ruling. Upon separation, she has the right to being spent on if she frees herself up for the physical custody of that child.

 

The Custodian becoming Disqualified for Custody

Article 217:  The custodian’s right to custody becomes disqualified in the following circumstances:

1) When one of the conditions stipulated by the Sharia for custody is compromised.

2) When the custody takes residence in a land that makes it difficult for the guardian of the child to fulfill his responsibilities. In that case, they can either come to a mutual agreement, or seek arbitration from a Muslim arbiter who will decide based on the best interests of the child, while not depriving either parent of his/her rights as best as possible.

3) When someone entitled to custody abstains from demanding it for an entire year, without excuse, in a way that would indicate to the arbiter his disinterest in the child.

4) When the new female custodian takes residence with someone whose right to custody has become disqualified for other than physical inability. The exception to that would be if she and that child are independent [of the former custodian] in terms of their living and dining quarters.

5) When the female custodian marries someone foreign to the child in custody, and is disputed with by the father – or anyone more rightful than him – for custody of that child.

Article 218:  Custody returns to those disqualified for it once the reason for that disqualification disappears.

 

The Right to Visit, be Visited, and Meeting

Article 219:  When the child is in the custody of one parent, the other is entitled to visiting him/her, being visited by him/her, and meeting him/her according to a mutual agreement between them. However, the parents must be careful to avoid being alone together after divorce has made them foreign to one another. If they dispute, the matter is referred to a judiciary which will determine windows of visitation, and set the time and place in a fashion that will prevent loop-holing in its execution as best as possible.

Article 220:  Regardless of whether these visitations are established by agreement of the parents or a judicial verdict, when new circumstances arise that cause such arrangements to be harmful to either party or the child, the matter is referred to a judiciary to decide whatever is most suitable. That could involve adjusting the visitation format, voiding the right of custody when agreements are breached, or when there is loop-holing in the execution of the agreed upon or decreed visitation format.

Article 221:  When one of the two parents is deceased or absent, the mahram relatives of the child in custody are entitled to visit him/her according to a mutual agreement between them. If they dispute, the matter is referred to arbitration.

Article 222:  When the child is not in the custody of either parent, the judge is to determine which of his mahram relatives are entitled to visitation.

Article 223:  When the child becomes sick, the mother is more entitled to nursing him if she is competent in doing that. If one of the two parents becomes sick, and the child is with the other parent, then the child must not be prevented from visiting that parent, irrespective of whether the child is a male or female.

 

CHAPTER FIVE

The Rights of Children In Sharaa

 

Article 224:  From the moment of early embryogenesis, the fetus has an inviolable right to life, survival, and growth. Thus, abortion becomes unlawful after the soul has been blown into it, unless the mother’s life is jeopardized by a confirmed danger that cannot be avoided without abortion. Abortion is also not allowed before that, except for an obvious need related to its health or the health of its mother. In fact, this fetus even has a right upon the parents which precedes its existence; namely that they correctly choose their life partner who will be the other parent of their children.

Article 225:  The child is entitled to good medical care and appropriate nutrition. This is accomplished through the good prenatal care of his/her mother, and then taking good care of him/her from the moment of his/her birth onwards, until he/she becomes independent.

Article 226:  Once born, the child is entitled to being named properly, and that joy and contentment are expressed for his/her arrival, regardless of whether that child is a male or female. Being disappointed for receiving a female is prohibited, as is doing anything that would harm her materially or psychologically.

Article 227:  The child is entitled to being attributed to his legitimate parents. For that reason, every practice that elicits doubt in a child’s attribution to his parents is unlawful, such as gestational surrogacy, sperm banks, and the likes.

Article 228:  The nursing child is entitled to being breastfed by his mother, unless the best interests of the child deem otherwise, or when that poses a serious health risk to the mother.

Article 229:  The child is entitled to proper custody, to ensure his development, rearing, and the fulfillment of his physical and emotional needs. The mother is most entitled to the custody of her child, and then those that follow her according to the rulings of the Islamic Sharia.

Article 230:  The right to custody extends to include orphan children, foundlings, the handicapped, the refugees, and those permanently or temporarily displaced from their family environment. In such cases, their custody becomes the communal obligation of the Muslim community.

Article 231:  Adoption, with the changing of a child’s identity, is prohibited in the Sharia, but that does not contradict the social responsibility, in all its forms, that is entitled to the orphans and foundlings. This stands irrespective of their identity, and is considered one of the greatest acts of devotion to Allah. To remove the unease of having a foreign (foster) adolescent and adult mixing with the opposite gender members of the foster family, it may be prescribed here to let the foster mother feed the infant during the first two years of life. It may be also exceptionally permitted to feed them with her breastmilk after this age, considering the dire need that exists sometimes. 

Article 232:  A concession is granted for registering Muslim orphan refugees outside the lands of Islam under the names of their caretakers, when that has become the only means to rescuing them. However, this should be coupled with practical measures to prevent unlawful interactions [between the genders] and to safeguard the system of inheritance structured by the Sharia.

Article 233:  The child is entitled to enjoy his childhood. Hence, he cannot be stripped of his right to rest, enjoy his free time, play with toys, recreate, and freely partake in a social life that suits his age and safeguards his identity, while distancing him from the forms of entertainment that are prohibited either by the Sharia or the local laws.

Article 234:  The child is entitled to a lifestyle that suits his physical, mental, religious, and social growth. Primarily, this right is shouldered by the father, and then whichever of his relatives are well off, if he is poor. This right continues for the boy until he becomes capable and finds an opportunity to work, and for the girl until she is married and moves to her marital home, or when she becomes financially independent.

Article 235:  The child is entitled to being reared in an upright and balanced fashion. Of the priorities of this upbringing is teaching him the fundamentals of faith, having him grow upon the worship of Allah and obedience to Him, instilling the religious values and ettiquettes and the noble manners within him, and accustoming him to avoid the prohibited and other harmful habits. Furthermore, they should distance him from bad company, direct him to healthy sports, interest him in beneficial reading, and his parents or caretakers should be a practical righteous example for him in all that.

Article 236:  The child is entitled to being protected from all forms of harm, trauma, harshness and negligence. He should not be dealt with in a manner that causes him to suffer physically, mentally, or emotionally, and should not be subject to any conduct that violates his honor by any individual that deals with that child or cares for him. This right does not hinder the necessary measures required to refine and discipline the child, and whatever that entails of rewards and punishments that are acceptable for child rearing. With wisdom and balance, one should combine between the means of persuasion and encouragement, and the means of punishment and deterrence, all within the Islamic, legal, and psychological guidelines.

Article 237:  The child is entitled to an education that is complete and balanced in terms of ideology and skills, one that aims to:

a)  Develop his outlook on the realities of existence; namely about the almighty Creator, the universe under His control, the human being having a purpose, this world being a life of tests, and it leading to a life of repayment in the hereafter.

b) Develop his personality, talents, and both his physical and mental strengths to their greatest potential, so that he can fulfill his purpose in life.

c)  Develop his respect for the rights of a human being, his fundamental freedoms, and to build his awareness of his general and specific responsibilities.

d) Develop within the child a respect for himself, his identity, his culture, his language, and the values particular to his religion and his ummah (religious community).

e)  Prepare the child for a life wherein he feels responsibility in a free society, seeks to protect his religious and human values, and seeks to draw nearer to his highest values through a spirit of understanding, peace, tolerance, equality between the genders in terms of human dignity, and mutual recognistion between various national, ethnic, and religious groups and peoples.

f)   Develop a respect for the environment, by being cognizant that the universe was created for the human being, to enable him to fulfill his purpose in life as a being commissioned to better the world around him.

Article 238:  The child is entitled to being protected from every form of exploitation, sexual abuse, and illegally violating his honor or reputation. He is entitled to being protected from using narcotics, mind altering substances, alcoholic beverages, smoking, and the likes. Additionally, he is entitled to being safeguarded from being kidnapped, sold, and traded with.

Article 239:  A child is entitled to developing good social habits. At their forefront is being keen to preserve the bonds of family and community, and that is by encouraging compassion and mercy between the family members and other relatives, whether by upholding the kinship ties, or by being kind to parents, or by obeying them in lawful matters, or by spending on them, or by fulfilling their needs when elderly or dependent, or by extending every other right allotted to them by the Sharia. This also includes becoming respectful to elders, merciful with youngsters, wishing well for humanity, and being cooperative in matters of goodness and piety.

Article 240:  The child is entitled to being protected from economic exploitation, and from performing any job that endangers his life, or deters him from consistently pursuing his basic, mandatory degree of education, or is harmful to his health, or to his physical, mental, religious, emotional, and social growth. Part of this is setting a minimum age for allowing children to perform different jobs, and placing an appropriate system for the hours and conditions of such work.

Article 241:     The child is entitled to have access to the information and programs broadcasted by the media outlets, those which strengthen his social competence, deepen his religious culturing, and protect his physical and mental health. Alongside this, he is also entitled to being curbed from the information and programs that harm all of these aspects of his life.

Article 242:  The child is entitled to being protected during adolescence from that which would provoke his sexual desires, and incite compulsive reactions during sexual education. Due to that, the following is mandatory:

a)  Using the appropriate expressions, which suit each phase of the child’s mental and emotional growth, whenever referring to this matter.

b) Incorporating the sexual education, in a fashion appropriate for his age, within its relevant contexts of the other sciences such as biology, health, Fiqh of Worship, family law, and religious studies. Also, this sexual education should be coupled with deepening the Islamic ethics relevant to this matter, such as discerning the lawful from the unlawful, and explaining the dangers of sexual misbehavior and departure from the lofty teachings of Islam.

 

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([1]) Note that upon divorce and custody arrangements, this won’t be uphelp by the public courts if the non-muslim parent doesn’t want to oblige and she has the children.

([2]) Currently, polygamy is prohibited across the USA.

([3])  This generally does not require a new marriage contract in the local governmental jurisdiction.

([4])  Some states have adopted Community Property or Quasi-Community Property laws which may affect one spouse's ability to possess the property described above. 

([5]) Such obedience to the husband is mandatory in light of him being the maintainer of the family. This station of “maintainer” does not entail subjugation and abuse, but rather a responsibility and obligation to look after the family, protect it, and ensure its tangible and psychological interests are realized.

([6])  Note that some American jurisdictions recognize putative spouses, where one spouse reasonably and genuinely believed that a marriage had occurred.  In some jurisdictions, this grants the same rights as a married couple.

([7]) Note that in the USA, all expenses, incurred for the livelihood of the marriage and family, are shared by the husband and the wife. In case the spouses do not mutually agree on the Islamic terms here above, the court will not uphold them.

([8])  Note that support of one’s children may be compelled differently by the local authority in varying jurisdictions.

([9]) An eelâ’ is an oath that is sworn. In family law, it refers to a husband swearing that he will not have sexual intercourse with his wife.

([10]) Dhihâr comes from dhahr (back). It refers to a husband declaring that his wife is as forbidden for him – in terms of intercourse – as his own mother's back.

([11]) Note that in jurisdictions which recognize putative spouses, the rights of a married couple may be granted by court.

([12]) Note that local jurisdictions may have alternate requirements.