Saturday, September 23, 2017 - 2 Muharram 1439

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Repayment of mahr in case of divorce filed by the wife

It is possible for a woman to demand divorce, provided she repays her mahr to her husband. What if she does not have the money to repay it? Does this mean that she cannot be divorced? In case the divorce is granted, who has custody of the children?

Answer

The reader is referring to what is known in Islamic terminology as khul'. This is the termination of the marriage at a woman's request in return for the remuneration of the husband. She does not need to provide reasons other than that she is not happy with her marriage and that she cannot or is unwilling to continue it. There is a reference to such a situation in the Quran in verse 229 of the second Surah. A precedent for khul’ took place at the time of the Prophet (peace and blessings be upon him) when the wife of Thabit Ibn Qais went to the Prophet (peace and blessings be upon him) complaining of her marital situation. She stated clearly that she had nothing against her husband, neither with regard to his character nor to his religion. She simply was not happily married with him. Thabit Ibn Qais had given her a garden as a her mahr [dowry] and the Prophet (peace and blessings be upon him) asked her whether she was willing to return it to him. She agreed and the Prophet (peace and blessings be upon him) told Thabit to accept the garden and divorce her.

There are differences between khul' and divorce. The first is that the idda [waiting period] of the woman lasts only until she has one menstruation period to make sure that she is not pregnant. Secondly, her husband is not entitled to reinstate the marriage during her idda. Thirdly, in divorce, she is entitled to all her mahr because the divorce is initiated by the husband who paid the mahr.

In khul' however, a woman has to pay something to her husband. This is fair because the mahr is paid by the husband to his wife in return for a gain or benefit he receives as a result of the marriage. When the marriage is terminated at the wife's request, that benefit or gain ceases to exist and he is therefore entitled to compensation. In the case mentioned in the hadith, the compensation was a refund of the mahr itself. It is up to the man and his wife to agree on a lesser compensation. Most scholars agree that the compensation may be more than the mahr itself, but some scholars say that this is not permissible.

As you see, if the woman does not have something to compensate her husband with, then she is asking him to forgo the benefit he receives from the marriage for nothing. All scholars would advise such a man to look at the situation carefully. If his wife wants to terminate the marriage because she is really unhappy and he can forgo his right to compensation, then he is recommended to do so. If he insists on receiving compensation, he cannot be blamed. In this case, she may be helped by her relatives or the community. This is only fair. A man who does not have anything to give as mahr must not be offended if his marriage proposals are rejected. Similarly, a woman who cannot compensate her husband for what he stands to lose as a result of the termination of marriage is not to feel aggrieved if he refuses. But in these matters, it is recommended to show forbearance and kindness to others. Even though we may be unhappy with the termination of the marriage, as a community we should look into helping her.

Child custody in Islam is the mother’s prerogative when the children are very young provided she does not remarry. When the child reaches an age when he or she no longer needs to be looked after by the mother, then they are allowed to choose to live with either parent until a boy attains puberty or a girl gets married.
 

Related links
» Is it possible to initiate khul' before requesting divorce from my husband?
» Returning to husband during the idda after khul'
» A woman filing for divorce, what is the procedure?
» Is the (shabka) jewelry offered as token of love to the bride returned after she files for divorce?
» What are the rights of a woman who is divorced through khul'?