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Search Fatawaa

Subject : Some Rulings on Divorce Resulting from Dissension between Spouses

Fatwa Number : 3190

Date : 07-04-2016

Classified : Divorce

Fatwa Type : Search Fatawaa

Question :

What are the rights of a woman as far as the advanced and deferred portions of her dowry are concerned, in case she filed for divorce due to dissension between her and her husband? What is intended by "Dissension between spouses"?

The Answer :

All perfect praise be to Allah, The Lord of The Worlds, and may His blessings and peace be upon our Prophet Mohammad and upon all his family and companions.

According to Islam, family is built on mercy, affability and compassion. Allah, The Almighty, said: "And of His signs is that He created for you from yourselves mates that you might find peace by their side, and He ordained between you affection and mercy. Surely in that there are signs for a people who reflect." {Ar-Rum/21}.

As regards dissension, Al-Imam At-Tabari said: "Each of them tries to make life difficult for the other. The woman becomes recalcitrant and doesn`t fulfill her duties and obligations, prescribed by Allah, towards her husband; whereas, her husband neither treats her with kindness, nor sets her free kindly, by divorce."{Tafseer At-Tabari, 8/318}.

The Jordanian Personal Status Law identified instances of dissension that justify divorce {Article, 126}:

"Any of the two spouses may file for separation on basis of dissension if he/she claimed being subjected to harm, from the other spouse, which hinders the continuity of marital life, whether that harm was physical or moral."

When dissension reaches its peak, Allah, The Almighty, prescribed seeking the mediation of two arbitrators appointed by the Islamic Judge in order to reach mutual reconciliation. It is even recommended that the arbitrators be from the families of both spouses, but it is permissible if they aren`t. Allah, The Almighty, Said (What means): " And if you fear a breach between the two, send forth an arbiter from his folk, and an arbiter from her folk, if they desire to set things right, God will grant them success. Surely God is ever Knower, Aware" {An-Nisa`/35}.

However, the portion of the dowry that the wife is entitled to varies in line with the percentage of harm she had caused to her husband or the other way around. This has been determined by the Jordanian Personal Status Law through paragraphs (H) and (W), Article (126):

Paragraph (H) states: "If the arbitrators failed to set things right and found that the wife is to blame, they decide on the compensation that they see fit, provided that it is no more than the dowry and its supplements. However, if the husband is to blame, the arbitrators decide on separating them by a Ba`in/irrevocable divorce, yet she has the right to the rest of her dowry and the alimony of her Iddah (waiting period after divorce or death of husband)."

Paragraph (W) states: "If the arbitrators realized that both spouses are to blame, they decide on separating them based on a certain portion of the dowry, according to the harm caused by each. However, if the arbitrators weren`t able to reach a decision and determine the percentage of harm caused by each spouse, they decide on separating them on basis of the compensation that they (arbitrators) see fit, provided that it is within the amount of the dowry and its supplements. And Allah knows best.



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