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  • Writer's pictureAyah

Dealing with the 'Ulama

I married eleven years ago. Left my family and country and embarked upon a new phase with a man I did not really know. After ten years of marriage, my now ex-husband divorced me. In fact, he announced he wanted a divorce on our ten-year wedding anniversary. In ten years of marriage, he completed medical school, became an ER physician, and also became CEO of his own company. All of my contribution towards the marriage was domestic: cooking, cleaning, laundry, ironing. Embittered by his leaving me, I approached an ‘alim, a teacher of mine who I admire and from whom I have benefitted spiritually. I wanted to know his opinion about what rights the shari’ah affords women who are divorced. How could it be fair that during the marriage, my ex husband acquired gainful employment, while I followed him state to state as he completed his medical rotations, being a housewife, and at the end of the decade the shari’ah affords me no financial support post-divorce? Keep in mind that due to us having a child, I am bound to live in the USA until our child is 18. I cannot move back to my parents’ home in my home country, where I would be well looked after. I have never worked a full time job in my life, nor have I ever paid a bill or filled out taxes. I am compelled to reside in the USA away from my family home and financial support, with no job. My ex husband’s life continues pretty much as it has been: he has a fabulous job and earns very well, and his lifestyle has not been altered much.

This is what the shaykh said, to my dismay:

My husband was just as much taking a risk when he married me, as was I. It was my choice (and risk) to not work during the marriage. I should have been financially productive during the marriage, securing myself financially in the event of possible divorce. I was puzzled and mentioned that some men want a wife to maintain the home and have good, healthy meals. He said that I (and any woman) should not have married a man who wants just that. Incredulous, I inferred from the shaykh’s words that I should have worked (to secure my financial future in the event of divorce), take care of the home, and be a present mother, simultaneously. How is this reasonable? How is this feasible? Frustrated, I felt disinclined to ask him for further advice on the topic, because his words did not seem to show an empathetic stance towards divorced women.

Fast-forward several months, I asked him this:

I am not legally divorced yet. My ex is willing to pay the mortgage on the house until I remarry. Once I remarry, alimony and the mortgage payment are suspended. My family is not happy with this because we feel that whatever wealth I am afforded for the ten years of marriage, should be unrelated to my future marriage. If I remarry soon, any financial contribution will cease to be, meaning that I would have basically received nothing for the ten-year marriage period. If, God forbid, the second marriage fails, I would then not even have a roof over my head, because I was given nothing that belongs to me, after my ten-year marriage. This would not be a problem if I were permitted to move back to my home country with my family. However, due to the will of my ex, I am compelled to be in the USA until our child reaches adulthood. Whatever happens in my future, whether I choose to remarry or not, the least I should have is a roof over my head (and our son’s), and I could work to meet our other expenses. Furthermore, my ex husband is confining me to that specific region, which affects my pool of possible marriage candidates. He may marry any woman of his choice, and as per Muslim culture generally, she would move to where he is located. It is far more challenging finding a man who would move to my small town, for my sake. What if I met a lovely man who is very established in another state (or even in another country), and would be willing to marry me, but unable to move. He might agree to an unusual arrangement where we spend part of the year together. How could such a man be expected to maintain two households, his own and mine? Given my limitations of movement, it would be most practical for the house to be given to me, irrespective of a future marriage.

His comments:

“Your situation is a little complicated. 1) According to the shari’ah your ex-husband was only obligated to maintain you financially during the period of the ‘iddah. 2) Beyond that, you both have a son who he is obligated to support until he is of age. That means that if your son is living with you, he would need to take care of whatever reasonable living arrangement that would be required for both you and your son. So it’s not so much for you, but it is because you are the caretaker of his son, and he has to accommodate that. Additionally, if you do remarry, he has a right to take full custody of your son. Because once you remarry, you do not have the same custody rights as before, as it is assumed that you will be busy with your new marriage and raising the child with a man who is not the father of the child. You don’t have to go that route, but your ex-husband may bring that up. Its complicated because he insists you remain in your town until your son is of age, whereas you could easily return to your home country, that’s something you’d have to talk about, it’s not as easy situation to contend with. “

Firstly, I did appreciate that he acknowledged that my situation is complicated and he was somewhat sympathetic that I am unable to move back to my home country. He also did mention that my ex-husband needs to facilitate the housing situation, as he is obligated to maintain our son, who happens to live with me half the time. What I found disappointing about his answer, is that he gave me a fiqh answer from the book, without taking into account the current age and societal norms.

That many ‘ulama apply fiqh rulings literally bothers me immensely. The objectives of the shari’ah are supposed to lead to the greater good (preservation of of the self; preservation of the reason; preservation of the religion; preservation of the property/monetary; and preservation of lineage). If we take fiqh rulings literally, to be frank, the woman will be pretty much screwed. The Qur’an mentioned repeatedly, “Divorce them bil ma’ruf”. What does bil ma’ruf mean? What does it mean to divorce them in goodness, in the 21st century in the USA? I think there is no definitive answer to this, as so many facets need to be considered: Was she a foreign wife? Where is her family? Did she work? What does the US law say about what is fairly hers upon divorce? What are ten years of domestic contribution equal to in monetary terms? Does the local law determine that she should receive half the assets? There are various angles to consider when making the divorce fair for all.

Many ‘ulama are reluctant to marry the two: local law and shari’ah law. Thankfully there are a few exceptional ‘ulama who do. They say “stick with the legal system because you will be afforded more rights that way” because the literalists will not afford the woman a cent, and she will be guilt tripped into, “Why are you asking more than what is rightfully yours in the shari’ah? My stance is that I believe that the Qur’anic terms were mentioned vaguely, because what is suitable and good differs depending on era, society and culture.

Furthermore, my friend who is a Shaykha mentioned to me that the divorced woman should be given a divorce gift. Upon her own divorce, she asked for a large sum of money. I have never, ever heard a single male scholar mention to me a divorce gift. And could the divorce gift not be what the local law affords the wife? Point being, the issue is more complex than taking fiqh rulings from a book literally. For example, how applicable is it to apply a fiqh ruling that the father may claim full custody of the child once the woman remarries, in an age where the father would be absent for most of the time, working, and the mother would be more able to rear the child day to day?

One way to mitigate these issues would be to have a marriage contract. More on that later.

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