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Law - Family

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Lesson 71

Post-Separation

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Main Points


Al-`Iddah
 (woman's post-marital waiting period)

·  Those women whose husbands parted from them because of divorce or death should wait a fixed period (`Iddah) not to be married or engaged, with the exception to the ones who were divorced before coition.

·   The post-marital waiting period of the divorced woman is three menstrual periods, unless she is pregnant.

·   The post-marital waiting period of the pregnant woman ends when she gives birth.

·   The post-marital waiting period of the non-menstruating woman is three months.

Financial support

·   The financial support of the wife is a duty on the husband throughout the marriage and during the post-marital waiting period. The maintenance standard is determined by the financial capability of the husband and the wife's condition.

·   The man is responsible for financially supporting his parents if they need so, and his sons and daughters, until his sons become financially independent and the daughters are married.[17]

Custody

·   The custody of children is a duty on parents, if not so the nearest kin.

·   The conditions for the custodians are that they be sane, mature, Muslim, free from any contagious diseases, and able to take care of the child.

·   If the parents are divorced, the mother has the right of custody if she is not married, otherwise custody will go to her mother.

·   The custody period is until the son reaches puberty and the girl gets married. The period of custody with the mother is seven years for the daughter, then she moves to the custody of the father, while the son chooses between them. If he does not make a decision, lots are drawn.

·   In all cases, the father is responsible for his children's financial support and payment of the custodian.[18]


 

Evidence from Qur'an and Sunnah
 

Al-`Iddah
(woman’s post-marital waiting period):

Allah says:

]وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلاَثَةَ قُرُوَءٍ[
(البقرة: 228)

This means: “And divorced women shall wait (as regards their marriage) for three menstrual periods.” (2, Al-Baqarah: 228)

Allah says:

]وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا[ (البقرة: 234)

This means: “Those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days.” (2, Al-Baqarah: 234)

Allah says:

]يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلا[ (الأحزاب: 49)

This means: “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no 'Iddah [divorce prescribed period] have you to count in respect of them. So give them a present, and set them free i.e. divorce, in a handsome manner.”
 (33, Al-Ahzab: 49)

Allah says:

]وَاللائِي يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلاثَةُ أَشْهُرٍ وَاللائِي لَمْ يَحِضْنَ وَأُوْلاتُ الأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ وَمَن يَتَّقِ اللَّهَ يَجْعَل لَّهُ مِنْ أَمْرِهِ يُسْرًا[(الطلاق: 4)

This means: “And those of your women as have passed the age of monthly courses, for them the 'Iddah (prescribed period), if you have doubts (about their periods), is three months, and for those who have no courses [(i.e. they are still immature) their 'Iddah (prescribed period) is three months likewise, except in case of death] And for those who are pregnant (whether they are divorced or their husbands are dead), their 'Iddah (prescribed period) is until they deliver (their burdens), and whosoever fears Allah and keeps his duty to Him, He will make his matter easy for him.” (65, At-Talaq: 4)

The Messenger of Allah (SAWS) said, “It is not lawful for a man who believes in Allah and the last day to water what another has sown with his water (meaning intercourse with women who are pregnant); it is not lawful for a man who believes in Allah and the Last Day to have intercourse with a captive woman until she is free from a menstrual course." [Abu-Dawud and al-Hakim].

The Prophet (peace be upon him) said:

“Stay in your house till the term lapses.” (Reported by An-Nasa’i)

He (peace be upon him) also said:

“It is not lawful for a man who believes in Allah and the Last Day to water what another has sown with his water (meaning intercourse with women who are pregnant).” (Reported by At-Tirmidhi)
 

Financial support:

Allah says:

]الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاء بِمَا فَضَّلَ اللّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنفَقُواْ مِنْ أَمْوَالِهِم[ (النساء: 34)

This means: “Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means.” (4, An-Nisa’: 34)

Allah says:

]أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ وَلا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ وَإِن كُنَّ أُولاتِ حَمْلٍ فَأَنفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ وَأْتَمِرُوا بَيْنَكُم بِمَعْرُوفٍ وَإِن تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَى[
(الطلاق: 6)

This means: “Lodge them (the divorced women) where you dwell, according to your means, and do not treat them in such a harmful way that they be obliged to leave. And if they are pregnant, then spend on them till they deliver. Then if they give suck to the children for you, give them their due payment, and let each of you accept the advice of the other in a just way. But if you make difficulties for one another, then some other woman may give suck for him (the father of the child).” (65, At-Talaq: 6)

Allah says:

]وَبِالْوَالِدَيْنِ إِحْسَانا[
(الإسراء: 23)

This means: “And that you be dutiful to your parents.” (17, Al-Isra’: 23)

The Prophet (peace be upon him) said:

“And their right is that you should treat them well in the matter of food and clothing.” (Reported by At-Tirmidhi)

He (peace be upon him) also said:

“A son says: Give me food; to whom do you leave me?”
(Reported by Al-Bukhari)


Custody:

The Messenger of Allah (peace be upon him) told the woman whose husband divorced her and took their son in his custody:

“You have more right to him as long as you do not marry.”
(Reported by Abu Dawud)

He (peace be upon him) also said:

“The maternal aunt is like mother.” (Reported by Al-Bukhari)