Who is Muslim in Family Law?
Muslim family law covers issues such as guardianship, inheritance and divorce. It draws heavily upon Quranic teachings but includes some secular components as well.
At issue here are rules regarding child custody, li’an and polygamy that disadvantage women; for instance, most often fathers serve as the legal guardians of their children and thus should serve as primary legal guardians of them.
Child Custody
Islamic family law contains various provisions regarding custody. This is due to Islam placing children’s welfare as its most pressing consideration; however, how this provision is handled varies among schools of thought.
According to most scholars, if both parents are qualified religiously and morally and can come to an agreement about child custody then both can share financial and custodial rights equally. However, this is no guarantee as father eligibility depends upon whether he had been violent toward either wife or children as well as having enough funds available for taking care of the child’s needs financially.
Female parents tend to be more nurturing towards their child and understand their needs better, which explains why divorced mothers typically receive primary custody over their child(ren). Furthermore, paternal grandmother and maternal aunt also share equal custody rights over them.
When children reach puberty they are free to make decisions regarding who they want as their guardian – usually their father; however in certain instances their mother can also claim custody due to circumstances like her remarriage etc.
As such, there has been a movement to reform Muslim family laws in order to address these issues. One factor contributing to this shift in opinion is because these laws can cause conflict and acrimony between partners, particularly after divorce proceedings; and secondly due to being based on fixed gender stereotypes they could affect children’s welfare negatively.
These outdated rules must be revised to account for modern society, taking into account both their economic benefits as well as the welfare of children overall. Negligent parenting often leads to children becoming corrupted and losing faith in Allah – something all too frequently seen today.
Maintenance
Muslim family laws are guided by Islamic law but also incorporate secular principles. These include how property, inheritance and maintenance is dealt with; unlike Western laws which treat this aspect individually, Islamic family laws treat all assets jointly between husband and wife in trust – meaning each spouse owns one-fourth of his/her property.
Additionally, husbands must provide regular financial support for their wife through what is known as nafqah (support) payments – this may include basic necessities like food and clothing as well as shelter. Furthermore, it is part of their duty as husbands to care for any children or relatives they cannot take care of themselves themselves.
However, if a husband fails to provide adequate nafqah payments, his wife may bring the matter before the courts for adjudication. At that time, judges will assess whether he is actually providing reasonable payments based on factors like his income and standard of living as well as any financial status issues or factors like child support payments or maintenance payments from employers.
Nafqah, or subservient women, refers to the belief that women are incapable of supporting themselves financially. This notion is especially prevalent among Muslim societies where men are seen as superior over women and seen as providing breadwinner roles for their households – leading them to take control over decisions like divorce. Unfortunately, however, this can create tension and conflict if one party wishes for a divorce proceeding to go forward.
Note that nafqah does not protect women against domestic violence. However, courts may award nafqah to women who can prove they have been subjected to maltreatment and can provide proof.
Shah Bano Begum, a 62-year-old woman, filed a petition under section 125 of CrPC against her husband for maintenance, which the court held she was entitled to according to classical Hanafi law – yet caused a storm among Muslim communities as it threatened their personal law system.
The court ruling marked an important victory in the fight for gender equality. Before, Muslim wives could only apply for nafqah after being married at least three menstrual cycles or lunar months, which proved problematic for widowed and childless women seeking financial relief from nafqah payments.
Divorce
As with other aspects of family law, divorce among Muslims varies widely depending on local culture and interpretations of Islamic laws. While reconciliation should always be pursued first as part of any marital union, sometimes divorce may become inevitable in certain instances; Muslim couples looking to separate have several options open to them for doing so.
One option for divorce is Talaq at-Tafweez, in which a husband assigns their right of divorce to their wife so she may initiate and finalise it without their involvement or consent. Unfortunately, this form of talaq may not always be available or acceptable in non-Muslim communities and legal systems and could prove contentious depending on individual circumstances.
Khula is another way that wives may end their marriage, with the wife returning any mahr she received at her wedding to terminate it. A khula does not release husbands of financial obligations to their wife and any children from his previous union and does not prevent remarriage, which is permissible under Islamic law.
Alternately, Muslim wives can pursue a husni divorce in cases of extreme cruelty or desertion from their husbands. While this process may seem straightforward at first glance, its effectiveness requires convincing evidence of abusive conduct by her spouse; otherwise it should only be attempted when all other avenues have been exhausted for reconciliation.
Muslim couples considering divorce must go through both the Sharia court and civil courts, which is a complex process requiring significant legal knowledge of Sharia law and understanding. Therefore, couples seeking assistance should hire a knowledgeable attorney who will guide them through this process while protecting their rights.
At Elliot Green, we understand the difficulties Muslim clients can encounter during a divorce proceeding. Our experienced lawyers collaborate closely with their clients to build strong cases and protect their interests during proceedings. Call one of our offices in Brooklyn, Queens or Staten Island today for a complimentary consultation from one of our seasoned lawyers!
Inheritance
The Quran is the primary source for Islamic inheritance laws, outlining guidelines necessary to ensure equitable wealth distribution among family members. Its rules have generally been well established, with most Sunni schools of thought (Hanafi, Shafi’i and Maliki) agreeing on how best to interpret them.
Muslim inheritance law places immense significance on women being granted an equal share in an estate, which marks a huge improvement from past practices where women weren’t permitted to own property or have any part of an inheritance. The Quran was an unprecedented source of change when it first introduced equal shares between men and women for inheritance distributions.
One common misperception about Islamic inheritance is that female beneficiaries receive half the share that male beneficiaries do, although this oversimplification disregards numerous other considerations involved in determining shares. Denial of inheritance occurs only under certain conditions such as if a beneficiary commits murder; for more information about your specific case and inheritance laws please seek advice from a scholar in that subject area.
Debt payment must also be prioritized prior to the distribution of wealth; although this shouldn’t pose a problem for Muslims, unexpected financial emergencies could complicate matters considerably. Therefore, it would be advisable to write down all outstanding debts as it will make things simpler for your heirs when the time comes for distribution.
Muslim families must also remember that illegitimate children do not inherit from their father’s property, but can receive part of their mother’s estate as compensation. Unfortunately, many families neglect this aspect and it may lead to issues later. Seek advice from an experienced attorney regarding how best to address it.