ABDUL AZEEZ MARUF OLAYEMI
Ahmad Ibrahim Kulliyah of Laws
International Islamic University , Malaysia
‘What God binds together, let no man put asunder’ is an axiom which
connotes that divorce is an abominable situation which no culture, society,
religion or law across the world encourages.
However it may be the only panacea to the preservation of fundamental
rights such as right to life and etc. That is in the situation where there are
acceptable grounds for its occurrence… Hence its legalization.
However, the legalization is not without responsibilities which are almost
equal to that of the responsibilities during the marriage or even more.
Both Islamic Law (Shariah) and the Statute Law have
provisions for mandatory financial responsibilities
after divorce which are of two folds:
1. Financial responsibilities that is obligatory on either of
the divorced couple.
2. Child support (if the marriage is blessed with
In the Shariah, when divorce occurred between a couple, be
it by legal separation or dissolution of marriage, the exhusband or ex-husband-to-be is obliged to the following
Maintenance during iddah (Annafaqah)
Nursing Wages / Ujratur Rada’ah
The Holy Qur’an prescribes that divorcee should remain
in the matrimonial house during the waiting period
(Iddah) and that the husband must be responsible for the
maintenance throughout the period.
“0 Prophet, when you divorse women, divorce them at their prescribed
periods, and count accurately riled prescribed periods: and fear Allah Your
Lord: and turn them not out of their house, nor shall they themselves leave,
except in case they are guilty of satire open lewdness. Those are the limits
set by Allah’’.Qur’an 65:1
Upon the occurrence of divorce between a
couple, the Rada’ah (suckling / brest-feeding)
of the child of such marriage becomes the
subject of contract between the ex-couple, and
if the mother of the child agrees to take the
responsibility she is entitled to wages from the
father of the child as they may agree between
themsleves or by the decree of a court.
This is pursuant to stipulation of the holy Qur’an that says:
Mother should breast fed there children…it is incumbent on the father to provide
them with maintenance and shelter…
According to the interpretation of jurists ‘mother’ includes both
the mother in a marital relation and a divorced mother, and
that in the case of a divorced mother she is entitled to wages
for the breast feeding (Ar-rada’ah).
Supporting the child is also a sole responsibility
of the husband/father. It must continue after
the divorce of the mother of the child and until
the child is able to cater for himself (if he is a
male) or marries (if she is a female)
A divorced woman under Shariah Law is entitled to AlMut’ah (Alimony) from her ex-husband as stipulated in
the holy Qur’an, as stated bellow:
… and deliver their alimony to them……….
However, Shariah jurists are of various opinions on the
question of whether all divorcees are entitled to
mut’ah (Alimony) and whether it is compulsory or not.
1. The majority of scholars,which include; Abu
Hanifah, Shafi’iy and Ahmad Bin Hambal are on
the opinion that it is obligatory to give Mut’ah to
a woman that is divorced before the
solemnization of the marriage (al-Bina) and
after the prescrition of bride-prise (fardulmahar), and that it is commendable when it is
after the solemnization of marriage or
prescription of bride prise.
2. Al-malikiyyah holds that it is commendable to give Al-Mut’ah to
all divorcees, except in a case whereby she has been given her
bride-price and there is yet to occur any cohabitation or
seclusion. Thus, in this case, the collected bride-price is seen
as sufficient compensation to the divorcee.
* The bone of contention (cause of diverse opinion) is the phrase
( )حقا على المحسنين / حقا على المتقينthe ………… in the verses that stipulates
Mut’ah. Majority of scholars gave it the interpretation of an
obligatory act (Wajib) while Imam Malik interpreted it as a
commendable act (Mandub).
However, Al-Qurtubiy mentioned that Shaikh
Islam Ahamd Ibn Taimiyyah decleared that
Mut’atu-Talaq (Al-Mut’ah) is compulsory on all
ex-husbands and that it must be given to all
divorcees without any exeption. This is the
opinion of Imam Ahamd Bin Hambal as well.
According to Islamic jurists, there is no specific
prescribed amount for Al-Mut’ah. The
parameter for the determination of the quantity
is the adopted ‘Urf (Custom) of each
community or as determined by court or
through mutual agreement of the ex-couple
and with the consideration of there social and
According to discovery from some articles of WLUML (Women Living under
Muslim Law), some of the countries that apply the rule of Mut’ah in divorce
cases are Eygpt, Jorndan, Bangladesh and Malaysia.
The Malaysian Islamic Family Law as regards post divorce maintenance is
established on the Sura II Verse 241.The Islamic Family Law (Federal
Territory) Act 1984 provides, in addition to the woman’s right to
maintenance, that a woman who has been divorced without just cause by
her husband may apply to the Shari’a Court for mut’a and the Court may,
after hearing the parties and after being satisfied that the woman has been
divorced without just cause, order the husband to pay such sum as may be
fair according to the hukum syara, which is based on Sura II Verse 241 of
In the Bangladesh case of Gul Bibi v. Muhammad Saleem PLD
1978 Quetta 177.
The argument was based on justice and common sense and
the position that it is possible to borrow from another school of
Muslim law when one school does not provide relief. Thus the
Court held “According to Shiah and Shafi law that the wife is
entitled to maintenance notwithstanding the fact that she was
allowed to get into arrears without having the amount fixed by
the Court, or by agreement with the husband...
Malaysian case of Tengku Puteri Zainah Tengku
Eskandar v. Datuk Seri Najib Razak.
The plaintiff sued her ex-husband inter alia for the
Mut’ah of M$5m (S$2.1 million) and Datuk Najib, in
his statement of defence, offered to pay Tengku Puteri
Zainah Tengku Eskandar M$36,000 without
The plaintiff appealed..
The court dismissed the application on Aug 27, 1992. In her application, Tengku
Puteri Zainah seeks to obtain the list of movable or immovable assets belonging to
Datuk Najib or in the name of his agents or nominees and in the possession of his
present wife, Datin Seri Rosmah Mansor, with details of acquisition, including dates
of purchase, inheritance and other means. She also seeks to obtain the list of
monies or moveable assets which were transferred out of Malaysia by Datuk Najib or
on his instruction from the date of their marriage on July 15, 1976, until July 12,
1992, the date that the affidavit was filed.
However, Mr Mohamed Raziff submitted that Tengku Puteri Zainah had no right to
the list based on provisions of the Syariah law in the country.
Straits Times, Singapore DEC 27 1997
The equivalent of Mut’ah in statutory laws is alimony. Alimony is
‘ the money someone pays to support a husband or wife they
no longer married to. Thus, unlike Mut’ah which is mandatory
only on the husband, the beneficiary of alimony may either of
the divorced couple.
Types of Alimony include:
1. Permanent alimony.
2. Rehabilitative alimony
3. Limited Alimony , and
4. Reimbursement Alimony
Law Reform (Marriage and Divorce) Act 1976.
Section 77 to 86
Power for cour t to order maintenance of spouse
77. (1) The court may order a man to pay maintenance to his wife or
(a) during the course of any matrimonial proceedings;
(b) when granting or subsequent to the grant of a decree of divorce
(c) if, after a decree declaring her presumed to be dead, she is found
(2) The court shall have the corresponding power to order a woman
pay maintenance to her husband or former husband where he is
incapacitated, wholly or partially, from earning a livelihood by reason
of mental or
physical injury or ill-health, and the court is satisfied that
having regard to her
means it is reasonable so to order.
Assessment of maintenance
78. In detennining the amount of any maintenance to be paid
by a man to his wife or former wife or by a woman to her
husband or former husband, the court shall base its
assessment primarily on the means and needs of the parties,
regardless of the proportion such maintenance bears to the
income of the husband or wife as the case may be, but shall
have regard to the degree of responsibility which the court
apportions to each party for the breakdown of the marriage.
Power for cour t to order security for
79 .The court may in its discretion when awarding
maintenance order the person liable to pay such
maintenance to secure the whole or any part of it by
vesting any property in trustees upon trust to pay such
maintenance or part thereof out of the income from
such property and, subject thereto, in trust for the
Compounding of maintenance
80. An agreement for the payment, in money or other
property, of a capital sum in settlement of all future
claims to maintenance, shall not be effective until it
has been approved, or approved subject to conditions,
by the court, but when so approved shall be a good
defence to any claim for maintenance.
Duration of orders for maintenance
81. Except where an order for maintenance is expressed to be
for any shorter period or where any such order has been
rescinded, and subject to section 82, an order for maintenance
(a) if the maintenance was unsecured, on the death of the
husband or of the wife, whichever is the earlier;
(b) if the maintenance was secured, on the death of the spouse
in whose favour it was made.
Right to maintenance to cease on
82. (1) The right of any divorced person to
receive maintenance from his or her former
spouse under any order of court shall cease on
his or her marriage to or living in adultery with
any other person.
(2)The right of any divorced person to receive
maintenance from his or her former spouse
under an agreement shall cease on his or her
marriage to or living in adultery with any other
person unless the agreement otherwise
Power for cour t to var y orders for maintenance
83. The court may at any time and from time to time vary, or
rescind, any subsisting order for maintenance, whether secured
or unsecured, on the application of the person in whose favour
or of the person against whom the order was made, or, in
respect of secured maintenance, of the legal personal
representatives of the latter, where it is satisfied that the order
was based on any misrepresentation or mistake of fact or
where there has been any material change in the
Power for cour t to var y agreements for
84. Subject to section 80, the court may at any time
and from time to time vary the terms of any agreement
as to maintenance made between husband and wife,
whether made before or after the appointed date,
where it is satisfied that there has been any material
change in the circumstances and notwithstanding any
provision to the contrary in any such agreement.
Maintenance payable under order of
cour t to be inalienable
85. Maintenance payable to any person under
any order of court shall not be assignable or
transferable or liable to be attached,
sequestered or levied upon for, or in respect of,
any debt or claim whatsoever.
Recover y of arrears of maintenance
86. (1)Subject to subsection (3), arrears of unsecured
maintenance, whether payable by agreement or under
an order of court, shall be recoverable as a debt from
the defaulter and, where they accrued due before the
making of a receiving order against the defaulter, shall
be provable in his or her bankruptcy and, where they
accrued due before his or her death, shall be a debt
due from his or her estate.
(2)Subject to subsection (3), arrears of unsecured
maintenance which accrued due before the death of
the person entitled thereto shall be recoverable as a
debt by the legal personal representatives of such
(3)No amount owing as maintenance shall be
recoverable in any suit if it accrued due more than
three years before the institution of the suit.
Both Islamic Law and the Statute Law agree on
the obligation of financial responsibility after
divorce, with slight variation.