FAIR & JUST FINANCIAL RIGHTS UPON DIVORCE

Financial settlements

upon divorce must be

fair and equitable for

both spouses.

Musawah

Policy Brief #05

Women often face economic challenges when they divorce. While

this occurs in most contexts, regardless of religion or national legal

regimes, the problem can be particularly pronounced in countries

with Muslim family laws.



The challenges within Muslim family laws may relate to maintenance during the ‘iddah

(waiting) period, payment of deferred mahr (dower), return of mahr in some forms of

divorce, the award of a consolatory gift (nafaqah al-mut‘ah), or most critically the division of

matrimonial property owned by the individuals or the couple. Divorce can lead to ﬁnancial

diculties for both spouses, but wives usually fare worse because of systemic inequalities.

This is further reinforced within Muslim

legal tradition, where marriage is presumed

as an exchange: the wife’s obedience and

submission (tamkin) in return for mainte-

nance (nafaqah) and protection from the

husband. Women therefore often contribute

less ﬁnancially to the union and are also

more vulnerable if the marriage fails.

While dower amounts can be signiﬁcant in some countries, giving wives a certain degree

of power and a minimal safeguard against talaq (unilateral divorce), women may feel

trapped in marriages because they could lose the mahr if they initiate certain types of

divorce (e.g. khul‘). In other countries where traditional mahr amounts are low, women

have no insurance policy to protect them from unilateral divorce and ﬁnancial ruin.

In many Muslim marriages, husbands predominantly or completely control ﬁnancial

resources because of legal structures or social norms. Property is often purchased by or

registered in the names of husbands. Most Muslim-majority countries have separate

property regimes, where each spouse retains property they acquire before or during the

marriage in their individual names; thus property is often retained by husbands after

divorce. But separate property rules fail to recognise non-material contributions to the

acquisition of matrimonial property, such as the domestic work, care, and support a wife

provides that enable her husband to work, earn income, and acquire assets.

The result is that women are often disadvantaged in the settlement of economic matters

upon divorce, and thus are economically vulnerable in its aftermath.

In most societies, women earn less,

are more likely to work in informal

sectors or sectors that pay less, own

fewer assets, and/or bear the primary

burden of managing the house and caring

for children and other family members.

How each of these issues is decided and enforced may lead to either financial stability

or financial crisis for women and their children.

A number of ﬁnancial matters must be

settled during the divorce process.

THESE INCLUDE:

NAFAQAH AL-‘IDDAH

Maintenance paid by the husband to the wife

during the ‘iddah (waiting) period of three menstrual

cycles (approximately three months), or, if there is

a pregnancy, until the woman delivers.

MAINTENANCE OF

CHILDREN

DIVISION OF

PROPERTY

The distribution of any assets owned

by the individuals or the couple, including

control and ownership of the matrimonial home.

This is often decided based on the country’s

matrimonial property regime. In separate

property regimes, each spouse owns whatever

assets are in his or her name, whether acquired

before or during the marriage, and retains that

upon divorce. In joint or community property

regimes, assets acquired during the marriage are

owned by the spouses equally and are divided

as such upon divorce. There are also hybrid

regimes that account for the amount of property

brought into the marriage or inherited during the

marriage or the amount contributed by individual

spouses. Most Muslim-majority countries adhere

explicitly or implicitly to the regime of separation

of property as a default rule. While contractual

agreements of joint or community property

or other hybrid regimes are theoretically legally

possible, only a few jurisdictions have enacted

statutory law relating to contractual

property regimes.

The husband often bears an obligation to

maintain the minor children and unmarried

daughters from the marriage, regardless

of who holds custody. Most countries have

inadequate enforcement mechanisms,

if any.

NAFAQAH AL-MUT‘AH

A gift of consolation based on Surah al-Baqarah

2:241, applicable for certain types of divorce (such

as talaq, tatliq, and certain instances of faskh or

tafriq, as discussed in Musawah Policy Brief 4

on Equal Divorce Rights). This may be a single

monetary gift or longer-term maintenance.



OVERVIEW OF THE ISSUE

MAHR

Dower given by the husband to the wife, which is

settled at the time of the marriage contract but

may be paid in dierent installments (prompt and

deferred). While as a general rule deferred mahr must

be paid by the husband to the wife at the latest when

a marriage is dissolved, in certain types of divorces

(e.g. khul‘) the wife must waive some or all of the

mahr in return for the dissolution of the marriage.

Women are dispropor-

tionately negatively

aected by divorce.

Many wives are earning

and contribute income

to their families during

marriage.

Even if wives are not contributing

monetarily, they often manage

the household and/or care for

children, elderly or inﬁrm family

members, etc.

Property is disproportionately put

in the husband’s name, even if it is

jointly paid for/owned because of

custom or law.

Financial settlements upon divorce must be reformed

to be more fair and equitable because:

The United Nations Committee on the Elimination of All Forms of

Discrimination against Women has stated that women ‘usually bear the

greater cost of the breakdown of the family than men … Research conducted

in some countries has found that while men usually experience smaller, if

not minimal, income losses after divorce and/or separation, many women

experience a substantial decline in household income and increased

dependence on social welfare, where it is available.’ (CEDAW General

Recommendation 29, paras. 1, 4)

Yet husbands often still have complete control and decision-making power

around ﬁnances, and still retain the ability to divorce their wives unilaterally.

Often the wife’s income is invisible because it is not documented or is used

for consumable items such as food, clothing, household expenses, etc. Assets

often remain under the husband’s control.

The wife’s unpaid work within the home, which

often enables men to work and earn an income, is

usually not compensated and often not recognised

either during the marriage or in deciding how

assets should be divided after divorce.

This inﬂuences the division of resources upon divorce,

especially in separate property regimes.



WHY IT MATTERS

Women face greater

economic burdens

than men.

Mahr (dower) is not

a source of security

for all wives in all

circumstances.

Women on average earn less than men; women are more

likely to work in lower-paying and/or informal sectors;

women own less property than men; women-headed

households are more likely to be poor. (UN Women, 2018)

In some countries and cultures, mahr amounts are high enough to give wives

a certain degree of ﬁnancial power in the marriage. But they may have to

return the mahr or forfeit any deferred mahr if they initiate certain types of

divorce, leaving them without ﬁnancially viable options. Traditional mahr

amounts are low in many other cultures, leaving women with no bargaining

power or ﬁnancial security.

While some actors claim that current laws are equitable because women are entitled to mahr at the time of

marriage and maintenance during the marriage and ‘iddah period, these financial provisions do not ensure

fairness and justice for women upon divorce. Muslim family laws related to economic matters upon divorce

can and should be changed, in accordance with Islamic teachings, human rights norms, and lived realities:

Basic principles of divorce—respect,

kindness, graciousness, fairness—

should be applied to financial matters.

The settlement of ﬁnancial concerns is part of the

divorce process, and should be undertaken with the same

notions of respect, honor, and equity as the divorce itself.

The Qur’an directs spouses to ‘either hold together on

equitable terms (ma‘ruf), or separate with kindness (ihsan)’

(Surah al-Baqarah 2:229) and to be gracious towards one

another (al fadl baynakum) (Surah al-Baqarah 2:237); that

husbands must ‘either take them back on equitable terms

or set them free on equitable terms; but do not take them

back to injure them, (or) to take undue advantage’ (Surah

al-Baqarah 2:231).

The Qur’an expects equitable ﬁnancial

provision for wives and former wives,

specifying that such support should be

reasonable and given with graciousness.

Contemporary Muslim family laws are not sacred, but are

derived from a combination of classical ﬁqh, colonial law,

custom, and tradition, based on human interpretation

and law-making processes. Thus they can change to be

more equitable and fair, in line with Qur’anic guidance.

Matrimonial property can be divided

evenly even if women received a

generous amount of mahr.

While some claim that women should not be given a

share of matrimonial property because they are given

mahr, jurists and courts have made the point that

these are separate issues, with mahr being an eect of

marriage and division of property taking place only upon

separation or dissolution of the marriage (Sait, 2016).

In some jurisdictions, distribution of matrimonial

property can also take place at the time of polygamy to

ensure that the rights of the ﬁrst wife—who would have

been in the marital relationship for a longer period—are

protected equitably.

The idea of recognising women’s

contributions to their households and

caring for their children is supported

by Muslim legal tradition.

Some classical ﬁqh texts stated that a wife had no

obligation to do housework or to care for children, and

was even entitled to wages for breastfeeding her babies.

These classical ﬁqh rulings are reﬂected in some national

Muslim family laws. For instance, Morocco’s 2004 law

reform gave mothers additional maintenance for breast-

feeding children. Judges can divide matrimonial property

based on both ﬁnancial and unpaid contributions from

each spouse. In Iran, women can be awarded monetary

compensation upon divorce for housework performed

during the marriage (Musawah, 2018).



WHY THE LAWS CAN BE CHANGED

• Universal Declaration of Human

Rights Article 16(1): ‘Men and women

… are entitled to equal rights as to

marriage, during marriage and at its

dissolution’.

• International Covenant on Civil and

Political Rights Article 23(4): ‘States

Parties … shall take appropriate steps

to ensure equality of rights and respon-

sibilities of spouses as to marriage,

during marriage and at its dissolution’.

Some international human rights obligations

related to economic rights upon divorce:

• CEDAW Article 16(1): ‘States parties … shall ensure, on a basis

of equality between men and women, … (c) The same rights and

responsibilities during marriage and at its dissolution’.

• CEDAW General Recommendations 21 and 29: ‘States parties

are obligated to provide, upon divorce and/or separation, for

equality between the parties in the division of all property

accumulated during the marriage. States parties should recog-

nize the value of indirect, including non-ﬁnancial, contributions

with regard to the acquisition of property acquired during the

marriage.’ (CEDAW General Recommendation 29, para. 46)

Many countries have acted to ensure fairness and justice for women

and men in terms of economic rights upon divorce:

WHERE REFORM HAS HAPPENED

Brunei, Egypt, Indonesia, Jordan, Kenya, Malaysia, Mauritania,

Morocco, Oman, Qatar, Singapore, United Arab Emirates:

The court has the power to order a man to pay his former wife a

consolatory gift or compensation (mut‘ah), in addition to the ﬁnancial

maintenance he has to pay her during the waiting period after the

divorce (‘iddah). The amount of compensation varies in each country

and may be based on a multiple of the ‘iddah maintenance or what the

court deems as fair and just.

Iraq, Kenya, Palestine (West Bank), Syria:

If the court ﬁnds that a man has divorced his wife in an arbitrary,

unfair, or unreasonable manner, the court can order him to pay his

former wife compensation for the divorce in addition to the ﬁnancial

maintenance he has to pay her during the ‘iddah period.

Afghanistan (Shi’a):

A woman can claim that she is entitled to a share of her former

husband’s property as wages for the household chores she conducted

while married to him.

Singapore:

A number of mechanisms are in place

to enforce court-ordered maintenance,

including: a specialised court to solely handle

maintenance concerns, thus expediting claims

and enforcement; a wide range of measures

that the court can use against defaulters; the

Shari‘ah court having power to sign documents

regarding selling or transferring ownership of

property where there is a court order and the

owner refuses to do so; the ability to report

Brunei, Malaysia, Singapore, Indonesia:

These countries adopt as a default rule joint property regimes in

which a wife’s unpaid care work is considered to be a contribution

to her husband’s ability to acquire assets. The court may order any

assets acquired by the parties during the marriage (harta sepencarian),

either through joint eorts or by the sole eorts of one spouse, to be

divided between them or any such assets to be sold and the proceeds

of the sale be divided between the parties. Depending whether the

assets were acquired jointly or individually, the Court considers the

extent of contributions of each party, including debts taken for their

joint beneﬁt and non-ﬁnancial contributions such as looking after

the home, family, or the needs of minor children of the marriage. In

‘Wages’ for household chores:

Enforcement of court-

ordered maintenance:

Division of

matrimonial assets:



Consolatory gift

or compensation

(mut‘ah):

Algeria:

If a judge ﬁnds that a man has divorced his wife in an arbitrary,

unfair, or unreasonable manner, or that the wife has suered harm

during her marriage, the former husband can be ordered to compen-

sate her for the divorce or for this harm in addition to the ﬁnancial

maintenance he has to pay her during the ‘iddah period.

Singapore:

A wife will almost always receive mut‘ah payment even if she is the

party petitioning for the divorce or she has ‘misconducted’ herself.

Arguments that a wife is ‘disobedient’ (nusyuz) have generally not

been accepted by the court to disqualify a wife from being entitled

to mut‘ah payment.

Tunisia:

If the court ﬁnds that a wife has suered harm during her marriage,

it will award maintenance and compensation upon the pronounce-

ment of the divorce in the form of regular monthly payments that

continue until the former wife’s remarriage, death, or she no longer

requires them. The amount awarded is based on the standard of

living that the former wife was accustomed to during her marriage.

Iran:

The Family Protection Act 2013 in accordance with the Civil Code

enables the court to force the husband to pay the wife ujrat al-mithl

(‘wages in kind’) for her housework during marriage based on a

monetary value decided by the court, provided that divorce is not

initiated by her or caused by any fault of hers.

maintenance amounts to credit bureaus; the

requirement that men declare debts and obli-

gations towards former wives and/or children

to prospective wives prior to remarriage.

Bahrain, Palestine, Tunisia:

These countries have established a fund

that assumes responsibility for payment

of court-ordered maintenance if a former

husband or father is delinquent in his main-

tenance payment.

Malaysia, a woman’s role as wife and mother are considered indirect

contributions and she is usually granted at least a third of the share

of assets even if she did not contribute ﬁnancially. In Singapore,

the court is obliged to consider what is ‘just and equitable’ and take

into account all considerations, including the extent of both ﬁnancial

and non-ﬁnancial contributions made by each party to the welfare

of the family. In Indonesia, each party has the right to receive half

of the matrimonial assets unless they had agreed otherwise in the

marriage contract.

Turkey:

The default property regime is equal division of property and assets

acquired during the marriage.

Tunisia, Morocco, Algeria:

The laws explicitly state that spouses have the option of choosing

a matrimonial asset regime in which they have joint ownership

of assets speciﬁcally intended for the family’s use.

Reform laws relating to matrimonial property

regimes to ensure the laws provide various

matrimonial property regime options for the couple

to choose from, making some form of community

property the default regime, and ensuring couples

are educated about the options before they marry.

Steps must be taken to ensure fairness and justice in economic matters for both wives and husbands when they divorce.

During marriage, spouses decide how they will contribute to the partnership; neither should be advantaged nor

disadvantaged when the marriage is dissolved. Governments can act in a multitude of ways to increase the chances

that both spouses will have stable economic foundations when they separate. These include:

In addition, religious officials, community institutions, family members, and individuals can assist the couple

to ensure that they part with kindness, respect, and fairness.

Reform divorce laws and procedures to ensure that

husbands cannot manipulate divorce options and

processes in a way that leads to the wives’ ﬁnancial

ruin, husbands pay ﬁnancial dues before they divorce,

deferred mahr and mut‘ah amounts are enough to allow

wives to live independently and are actually paid, and

compensations set in khul‘ divorces do not harm wives

who have no other divorce options.

HOW TO ENSURE JUSTICE



These briefs are available on the Musawah website at:

www.musawah.org For general resources on economic

rights after divorce and references to those resources used

in this brief, visit the brief ’s page on the Musawah website.

PUBLISHED BY MUSAWAH IN 2021

www.musawah.org | [email protected]g | /: musawahmovement | : @musawah

This policy brief is part of a series of briefs on key issues in Muslim family laws funded by the UN Women Regional

Program for the Arab States and undertaken within the framework of the ‘Men and Women for Gender Equality’

programme funded by the Swedish International Development Cooperation Agency (SIDA). The views expressed are

those of Musawah and do not necessarily represent the views of any of the funders.

Any part of this publication may be copied, reproduced, adapted, stored in a retrieval system, or transmitted

in any form or by any means to meet local needs provided that there is no intention of gaining material proﬁts and

that all copies, reproductions, adaptations, and translations acknowledge Musawah as the source. A copy of any

reproduction, adaptation, or translation should be sent to Musawah at the address listed on its website.

STATE

LAWS

Equality and non-discrimination

clauses in state laws and

constitutions require equal

treatment of women and men in

marriage and upon divorce.

INTERNATIONAL

HUMAN RIGHTS

States must ensure that women and

men have equal rights, including

economic rights, during marriage and

at its dissolution.

ISLAMIC

TEACHINGS

Fairness, respect, and graciousness guide

the divorce process and the norms for

ﬁnancial matters during marriage and

settlement upon divorce.

LIVED

REALITIES

Financial settlements must be

equitable to take into account

women’s paid and unpaid contributions

and address the disproportionate

ﬁnancial harm suered by women

upon divorce.

FINANCIAL

SETTLEMENTS

UPON DIVORCE

MUST BE JUST &

EQUITABLE

Settlement of ﬁnancial matters upon divorce

must be fair and just for both spouses.