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None Of The Woman’s Financial Rights Over Her Husband Are Waived As A Result Of His Financial Hardship Or Bankruptcy

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Rufai Oladimeji
, Nigeria.
Question

After my divorce and alimony battle
with the Supreme Court of Canada,
I was awarded the court costs as I
won the case. But despite the court
order, my ex-husband has not paid
me anything and he has declared
bankruptcy. My question is: is he
still in debt to me before Allah, may
He be glorified and exalted? Does he
still owe me other money that has
accumulated?.

Answer

Praise be to Allah.
Firstly:
In the answer to question
we stated that the fuqaha of the
Muslims are unanimously agreed
that being Muslim is an essential
condition of the judge who judges
cases among the Muslims, because
serving as a judge is a kind of
wilayah (authority), and there is no
wilayah for a kafir over a Muslim.
We also stated that a concession is
granted allowing one to refer to the
court that is based on the man-
made law of the land, when doing so
becomes a means of getting one’s
rights or warding off wrongdoing in
a land that is not ruled by
sharee‘ah, on condition that those
who have knowledge of sharee‘ah
be consulted to determine the shar‘i
ruling that is applicable to a given
case, and that the demand be
limited only to seeking what
sharee‘ah allows and trying to
implement it.
But if the court that is based on
kafir, man-made laws has issued a
verdict in favour of one of the two
disputing parties over the other,
awarding him more than he is
entitled to (according to sharee‘ah),
it is not permissible for him to take
more than he is entitled to, and he
has to return the rest to the
rightful owner.
If the court has awarded him his
rights, then he may take it; if it has
awarded him less than his due, then
he has the right to ask for the rest
of what he is entitled to, and it
remains a debt owed by his
opponent; the ruling of the court
does not absolve him of that debt.
Something similar may be said
concerning other rights, if you are
still entitled to some rights from
him, such as maintenance, clothing,
money that he borrowed from you,
and so on. None of these can be
waived if he declares bankruptcy or
if the court does not instruct him to
give them; rather he still owes them
to you and whenever he can afford
to, he must fulfil the duties that he
owes.
If the law of that land waives debts
for the bankrupt person if he
declares his bankruptcy, then it is a
law that is contrary to sharee‘ah
and it does not carry any weight.
Please see the answer to question
no.
Based on that, you should examine
the ruling of this Canadian court; if
it is in accordance with the ruling of
Allah, then it may be followed and
implemented. But if it is contrary to
that, it should be rejected and
should not be implemented, and you
should refer to the nearest Islamic
centre to your place of residence in
that country, to find out about that
and act accordingly.

Secondly:
It is clear from the above that the
money that has been awarded by
the court is permissible for you to
take if it is what you are entitled to
as determined by the Islamic judge
(qadi). If it is more than that, you
do not have the right to take more
than the amount determined by
sharee‘ah; if there is anything more
than that, it is not permissible to
you to take it.
But if it is less than what you are
entitled to, you have the right to
take it, and the rest remains a debt
that he owes and it is not waived;
whenever he can afford it, he
should pay it off.
If he is really poor and in financial
difficulty, then you have to wait
until he is able to pay it off.
But he has resorted to declaring
bankruptcy, as people often do in
the West, this does not mean that
your shar‘i rights are waived for
him; rather it remains a debt that
he owes. If he is not really in
financial difficulty, then you can try
to ask for it, put pressure on him,
and complain about him, until you
get what you are entitled to from
him.
If he really is in financial difficulty,
then you have to give him time
until he can afford to pay off his
debt.
Please see also the answer to
questions no. and

And Allah knows best.

islamqa.info/en/answers/187342/none-of-the-womans-financial-rights-over-her-husband-are-waived-as-a-result-of-his-financial-hardship-or-bankruptcy

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