Marital property and the estate

Her dower is hers outright, and an unpaid one is a debt of his estate. The Shafi’i and Hanbali schools are quoted together in the Kuwaiti Mawsu’a: “the dower in its entirety is the woman’s property, and nothing of it remains the man’s”. The Hanafi school states the same in the same section — even where a husband deliberately raised the dower above the going rate meaning her to furnish the marital home out of it, she owes him nothing, “because the dower is a right belonging to her alone”; furnishing the home is his obligation, not hers. On the money side that produces a debt, not a share. The Hanafis put it plainly: “her dower is a debt she has against her husband, so it ranks equally with a debt he contracted in health” — she proves alongside his creditors and takes rateably. The Shafi’is, out of al-Shafi’i’s own al-Umm, take the dower of her equals “out of the whole of the estate”, with anything beyond it treated as a bequest. Ibn Qudama gives the Hanbali rule in a sentence: “the dower, if it is in the obligation, is a debt; if the man who owes it dies owing other debts as well, his property is divided among them rateably”.

Sources: al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 60, “al-jihaz wa-mata’u al-bayt” (vol. 39 p. 206) — “al-mahru haqqun khalisun li’l-zawjati tatasarrafu fihi kayfa tasha’, fa-laysa ‘alayha i’dadu al-bayt”; furnishing the marital home is the husband’s obligation as part of maintenance; “wa-qala al-Shafi’iyyatu wa’l-Hanabila: al-sadaqu kulluhu milkun li’l-mar’ati wa-la yabqa li’l-rajuli fihi shay’” (Hashiyat al-Jamal 4/264, Kashshaf al-Qina’ 5/140); and the Hanafis, that even where the husband raised the dower above the mahr al-mithl meaning her to furnish the house, she owes nothing, “li-anna al-mahra haqqun khalis” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 61, “al-mahru hala maradi al-mawt” (vol. 39 p. 207) — the Hanafi treatment: a wife married by an indebted sick man shares rateably with his creditors after his death if he has not paid her, “wa-dhalika li-anna mahraha DAYNUN laha ‘ala zawjiha fa-yakunu musawiyan li-dayni al-sihha” (Bada’i’ 7/225, Tabyin al-Haqa’iq 5/23) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 61 cont. (vol. 39 p. 208) — the Hanafi rule that a dower at the level of the mahr al-mithl comes “min ra’si al-mal” because it is the man spending on his own essential needs, anything above it being muhabat treated as a bequest; and then the Shafi’is, quoting al-Umm 4/31, that a sick man may marry as a well man may, the dower of her equals coming “min ra’si al-mal” and the excess from the third (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Untha” sec. 13, “dhimmatuha al-maliyya” (vol. 7 p. 81) — “li’l-untha dhimmatun maliyyatun mustaqillatun ka’l-rajul, wa-haqquha fi’l-tasarrufi fi maliha amrun muqarrarun fi’l-shari’a ma damat rashida” on Surah an-Nisa 4:6; “wa-laha an tatasarrafa fi maliha kullihi ‘an tariqi al-mu’awadati bi-duni idhnin min ahad, WA-HADHA BI’TTIFAQI AL-FUQAHA’”; and on gratuitous disposal, the Hanafis, the Shafi’is, Ibn al-Mundhir and a report from Ahmad allow the whole (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Untha” sec. 13 cont. (vol. 7 p. 82) — “wa-‘inda al-imami Malik, wa-fi riwayatin ‘ani’l-imami Ahmad: annahu yajuzu laha al-tabarru’u fi hududi al-thuluth, wa-la yajuzu laha al-tabarru’u bi-ziyadatin ‘ala al-thuluthi illa bi-idhni zawjiha”, citing al-Ikhtiyar 3/91-92 (Hanafi), Jawahir al-Iklil 2/102 (Maliki), al-Majmu’ 12/378 (Shafi’i) and al-Mughni 4/513-514 (Hanbali); and that a woman may stand surety, “li-anna li’l-mar’ati dhimmatan maliyyatan mustaqilla” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 61 cont. (vol. 39 p. 208) — the Shafi’i working where the husband dies: if the wife is one of his heirs and he named her the dower of her equals, “jaza laha min jami’i al-mal”, the excess being muhabat; if she is not an heir, the dower of her equals comes from the whole estate and the excess from the third (al-Umm 4/31 and following). Then the Hanbali rule on muhabat in a death-illness marriage, on two reports (Ministry of Awqaf and Islamic Affairs, Kuwait) · Ibn Qudama, al-Mughni, mas’ala 5660 (vol. 7 p. 273) — “wa’l-sadaqu idha kana fi’l-dhimmati, fa-huwa dayn, idha mata man huwa ‘alayhi wa-‘alayhi daynun siwahu, qussima maluhu baynahum bi’l-hisas”; Ahmad on a sick man who marries in his illness owing debts and dies: what he left is divided between the creditors and the wife rateably, “wa-dhalika li-anna nikaha al-maridi sahih, wa’l-sadaqa dayn, fa-tasawa sa’ira al-duyun” (Ibn Qudama al-Maqdisi (d. 620 AH)) — each school separately attested at the page cited.

Hers in ownership, but not hers to do as she likes with. The Malikis agree that the property she brings and earns is her own and that the dower is owed to her; they refuse the further step. The Mawsu’a sets their position against the other three in terms: “as for the Malikis, they hold that the dower is not a right belonging to her alone, and for that reason she may not spend it on herself, nor discharge a debt of her own out of it” — beyond a trifle, and a needy woman may take a little by way of custom — “because she is obliged to furnish the home in the manner customary for a woman like her marrying a man like him, out of what she received of the dower before the marriage was consummated”. The same asymmetry runs through her wider property: on the Maliki view, and on one report from Ahmad, a married woman may give away up to a third of her property and no more without her husband’s leave. None of this puts her property into his estate; it limits what she may do with it while the marriage lasts. Where the dower has to be met out of his estate the Malikis also work differently in the death-illness case, giving her the lesser of the named dower and the dower of her equals out of the one third rather than off the top.

Sources: al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 60 cont. (vol. 39 p. 206) — the Hanafi reasoning completed (“li’l-zawjati ta’ziman li-sha’niha”, Ibn ‘Abidin 2/366-367), and then the Maliki dissent: “amma al-Malikiyyatu fa-yarawna anna al-mahra laysa haqqan khalisan li’l-zawjati wa-li-hadha la yajuzu laha an tunfiqa minhu ‘ala nafsiha wa-la taqdiya minhu daynan ‘alayha” beyond a trifle, “li-anna ‘alayha an tatajahhaza bi-ma jarat bihi al-‘adatu fi jihazi mithliha li-mithlihi bi-ma qabadathu min al-mahri qabla al-dukhul” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Untha” sec. 13 cont. (vol. 7 p. 82) — “wa-‘inda al-imami Malik, wa-fi riwayatin ‘ani’l-imami Ahmad: annahu yajuzu laha al-tabarru’u fi hududi al-thuluth, wa-la yajuzu laha al-tabarru’u bi-ziyadatin ‘ala al-thuluthi illa bi-idhni zawjiha”, citing al-Ikhtiyar 3/91-92 (Hanafi), Jawahir al-Iklil 2/102 (Maliki), al-Majmu’ 12/378 (Shafi’i) and al-Mughni 4/513-514 (Hanbali); and that a woman may stand surety, “li-anna li’l-mar’ati dhimmatan maliyyatan mustaqilla” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 61 cont. (vol. 39 p. 209) — the Maliki treatment of the dower where a sick man marries a healthy woman: if he dies before the marriage is annulled “fa-laha al-aqallu min al-sadaqi al-musamma wa-sadaqi al-mithli MIN THULUTHI MALIHI, sawa’un dakhala biha aw lam yadkhul”; if it was annulled before his death and before consummation, she takes nothing of the dower (al-Sharh al-Kabir with al-Dasuqi 2/276, al-‘Adawi on Kifayat al-Talib 2/70) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Mahr” sec. 3 (vol. 39 p. 151) — “al-mahru wajibun fi kulli nikah” on Surah an-Nisa 4:24, “illa anna dhikra al-mahri fi’l-‘aqdi laysa shartan li-sihhati al-nikahi fa-yajuzu ikhla’u al-nikahi ‘an tasmiyatihi bi’ttifaqi al-fuqaha’” — naming al-Hidaya (Hanafi), al-Sawi on al-Sharh al-Saghir (Maliki), Mughni al-Muhtaj and Rawdat al-Talibin (Shafi’i), al-Mughni and Matalib Uli al-Nuha (Hanbali) (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Maliki dissent, stated against the other three.