من ضوابط الإفتاء في نوازل الأسرة المسلمة المال المشترك بين الزوجين في ضوء العرف والمصالح والمآلات

Guidelines for Fatwas Related to Emergent Issues Affecting Muslim Families: Spouses' Jointly Owned Wealth in light of al-‘Urf, ¬al-Maṣālih and al-Ma'ālāt

Abstract

This study examines the issue of spouses' joint ownership, where a spouse claims certain portion of the other's wealth in cases of divorce, death or husband's second marriage. This is different from other rights entailed by the marriage contract like nafaqah (alimony), mut‘ah (post-divorce gift) and both prompt and deferred parts of the dower (muqaddam al-ṣadaq wa mu'akharuh).

 I studied this issue in light of ‘urf (customs), al-masalih al-mursalah (unrestricted interests) and al-m'ālāt (consequences). It is clear that these evidences or Ijtihad tools do not establish this financial right for any one of the spouses. As a matter of fact, the financial rights secured by Shari‘ah during spouses' life through the marriage contract, or after they pass away through inheritance, have no counterpart in any positive law. Therefore, Muslims do not need such legislations that do not realize any real interest for spouses but rather result in numerous harms.