Fathwa, - The husband's financial responsibilities after divorce

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Question:
My wife and I are coming to the logical end of our marriage. The only thing that keeps us together is the two children. My Question is what are my financial commitments to her after the divorce. She says they continue until she weds again. Is this the case? She wants the kids, and I cannot separate them from their mother. I will live nearby. Please advise me. As it is, I have a backlog of debt to her, where she forewent nafaqah, and I must repay it. Do I owe anything on top of this?
Answer:
In the name of Allah, Most Compassionate, Most Merciful,
One of the rights of the wife on the husband is her financial support, which includes food, clothing, shelter, etc..
Allah Most High says:
�Let the man of means spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him� (Surah al-Talaq, V.7),
This financial support (nafaqah) is binding upon the husband throughout the marriage, if the wife gives herself to him or offers to. (al-Mausili, al-Ikhtiyar, 4/229).
If the marriage unfortunately came to an end, then the woman will receive this financial support throughout the waiting period (iddah). Once the post marital waiting period comes to an end, the obligation of Nafaqah no longer remains on the husband.
Allah Most High says:
�Let the woman live (in iddah) in the same style as ye live, according to your means. Annoy them not, so as to restrict them. And if they carry (life in their wombs), then spend on them until they deliver their burden� (Surah al-Talaq, V. 6).
It should be remembered that the wife will be entitled to this financial support (during the waiting period) regardless of whether the divorce was revocable or irrevocable. (Radd al-Muhtar, 3/609).
As far as the Nafaqah for the previous years is concerned, the Fuqaha mention that if a period passed, in where the husband failed to provide financial support for his wife, the amount he should have paid does not remain a debt he owes to her.
However, there are two exceptions for this:
1) If both spouses agreed that it will be paid later
2) The Judge (qadhi) ordered that it should be paid later
Imam al-Haskafi (Allah have mercy on him) states in his Durr al-Mukhtar:
�Financial support (nafaqah) will not become a debt except with judgment (qadha) or by agreement (radha)� (See: Radd al-Muhtar, 3/594).
Therefore, if you did not make an arrangement with your wife of paying the Nafaqah later, it will not be binding on you to pay her for the previous years. However, if you do, out of your own will, you will be rewarded.
And Allah knows best

PUBLISHER Najimudeen M

Fathwa, - Waiting period for a non-menstruatingwoman prior to menopause

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Question:
Can you explain to me what the judgment is for the woman whose husband has divorced her, but she has no menstrual period nor is she in menopause. I would like to know specifically the length of time of her iddah? Is it 3 consecutive months? If you have any information please list your source. I have been told that her iddah is not over till she reaches the age of 64. Is this true? I would like to know the judgment from each of the four major madhabs.
Answer:
In the name of Allah, Most Compassionate, Most Merciful,
The waiting period (idda) for a female who does not experience menstruation due to childhood (saghira), who is on menopause (a�yisa) and who reached the age of puberty without experiencing menstruation, will be three consecutive Islamic months.
Allah Most High Says:
�Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same)� (Surah al-Talaq, V.4).
If the women experienced menstruation for three days or more, and then her menstruation stopped, the original ruling for her is that she will have to wait until she starts menstruating again or she reaches the age of menopause (iyaas). This is according to the Hanafi and Shafi�i schools (Radd al-Muhtar, 3/508).
According to the Maliki and Hanbali schools, the preferred opinion is that she will wait until one year is complete (al-Fiqh al-Islami wa Adillatuh, 7185).
The age of menopause according to the Hanafi Fuqaha is thirty years for a woman who never experienced menstruation, and fifty five years for the one who did experience menstruation, but stopped for some reason.
However, due to immense difficulty and hardship incurred by acting upon this ruling, the fuqaha have given a dispensation in that the Maliki opinion of one year can be followed.
Ibn Abidin, the great Hanafi jurist quotes al-Zahidi as saying:
�Some of our scholars used to issue a Fatwa in this issue according to the opinion of Imam Malik, because of need� (Radd al-Muhtar, 3/509).
Many contemporary scholars have also given the same ruling, however the following points need to be taken into consideration before acting upon this ruling:
1) The woman should first resort to medication. If all attempts fail, then she can act upon this ruling of one year.
2) This ruling should be passed by a Maliki judge. However, if this is difficult, then it will permissible even without the judgment.
3) If menstruation appears during this period of one year, then the Idda of three menstruations should be observed (Imdad al-Fatawa, 2/431 & Ahsan al-Fatawa, 5/435).
In conclusion, a woman who does not menstruate due to illness should first resort to medication. If all attempts fail, then she can re-marry after the period of one year is over.
And Allah knows best

PUBLISHER Najimudeen M

Fathwa, - Science and Sunna: Moon Sighting and Waiting Periods

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Question:
It has been suggested that we no longer need to sight the moon to determine the onset of Islamic months, as reliable astronomical calculations enable us to answer the question. If this is permissible, does it mean, by analogy, that women need no longer observe Iddah after divorce or bereavement, since pregnancy can reliably be excluded or confirmed by testing urine or blood, and by ultrasound scans. Moreover, DNA fingerprinting means paternity can be determined after birth in any event. I ask this question as I have some reservations about the use of technology that may lead us to forgo some aspects of the Sunnah.
Answer:
Walaikum assalam,
1. While most contemporary scholars accept benefiting from calculations for exclusionary purposes, they affirm that actual eye-sighting is a condition for establishing the Islamic months and mention many benefits to it.
2. The reason behind idda is not only to establish that the woman is not pregnant: even a woman who did not have intercourse with her huband for years must go through this. The gravity of idda gives a powerful reminder to the individuals involved, and the society around them, about the seriousness of the marriage bond, the future benefits of which are obvious upon reflection.
And Allah alone gives success.

PUBLISHER Najimudeen M