Custody of children and maintenance after divorce
Who has the right to care for young children after a divorce, and when a husband must keep providing his wife's food, clothing, and housing.
When parents separate, young children are usually looked after day-to-day by their mother - this is called custody (hadanah) - even though guardianship of the child still usually belongs to the father's side.
A husband must also keep providing his wife's food, clothing and home during her waiting period, whatever kind of divorce it was, as long as she is still living where he has placed her.
Custody of a minor is called hadanah. Unlike guardianship, where the father and his family take precedence, in custody it is the mother and her family who take precedence.
| Condition | Detail |
|---|---|
| Free, adult, and trustworthy | The custodian (mother) must be free, an adult, and a person of integrity. |
| Capable of nurturing | The custodian must be able to look after the child properly. |
| Not married to a non-mahram | This condition applies to a female custodian only; a non-mahram is someone with whom the minor has no close blood relation. |
Where the custodian is a man, the same conditions apply except for the third - being married to a non-mahram is not a bar for him.
The right to custody belongs to the mother, even where she has separated from the husband. If she becomes an apostate, however, she loses the right of custody until she returns to Islam.
The order in which the right of custody passes, one person to the next
- The mother.
- If she has died or given up her right (for example by marrying a non-relative of the child), the maternal grandmother, however distant - the mother's maternal grandmother, or her grandmother's grandmother.
- Then the paternal grandmother, however distant, if the maternal grandmother has died or given up her right.
- Then the sister - the full sister first, then the half-sister through the mother, then the half-sister through the father.
- Then the niece - the full niece first, then the half-niece through the mother.
- Then the maternal aunt - full, then half through the mother, then half through the father.
- Then the niece through a half-sister (from the father), the paternal niece, and then the paternal aunt - full, then half through the mother, then half through the father.
- Then the mother's maternal aunt - full, then half through the mother, then half through the father.
- Then the father's maternal aunt - full, then half through the mother, then half through the father.
- Then the mother's paternal aunt - full, then half through the mother, then half through the father.
- Then the father's paternal aunt - full, then half through the mother, then half through the father.
- After all of these, male agnate relatives, in order: the child's father, the paternal grandfather, the brother (full, then half through the father), the nephew (full, then half through the father), the paternal uncle (full, then half through the father), the paternal cousin (full, then half through the father), and finally the maternal relatives (dhu al-arham).
Maintenance (nafaqah) refers to food, clothing, and housing. Here it specifically means the maintenance of a wife with whom a valid marriage has taken place.
Maintenance for the wife is obligatory on the husband whether she is poor or rich, whether the marriage has been consummated or not, and whether she is Muslim or from the People of the Book. Even a poor or needy husband must still provide it.
During the waiting period after divorce, the husband must continue providing maintenance for as long as the wife stays in his home, whether the divorce was revocable or irrevocable. Maintenance is not obligatory, however, during the waiting period following an annulment of marriage or the husband's death.
| Case | Why |
|---|---|
| An apostate wife | She has renounced Islam. |
| A wife in an invalid marriage (nikah fasid) | The marriage itself is not sound. |
| A wife in the waiting period of an invalid marriage | Follows from the marriage not being sound. |
| Nashiza (a rebellious wife) | She leaves the house without the husband's permission or a valid religious excuse. |
| A wife who only stays with her husband during the night or the day | She is not fully available to the marriage. |
| A wife who goes on pilgrimage with someone other than her husband or a mahram | None |
| A wife who is abducted, imprisoned, or otherwise taken away | None |
| A wife who is ill and has not returned to her husband's home | None |
Ḥaḍānah is custody of a minor. Unlike wilāyah (guardianship), where the father's side takes precedence, in ḥaḍānah the mother and her side take precedence.
| Condition | Detail |
|---|---|
| Ḥurrah, bāligha, and of integrity | The custodian must be free, an adult, and trustworthy. |
| Capable of nurturing | Able to properly raise and care for the child. |
| Not married to a non-maḥram | Applies to a female custodian only - a non-maḥram here is one with no close blood relation to the minor. |
For a male custodian, the same conditions apply, excepting the third.
The right of ḥaḍānah belongs to the mother even after separation from the husband. Should she apostatise, she loses the right until she returns to Islam.
The order of priority (tartīb) for ḥaḍānah
- The mother.
- On her death or forfeiture of the right (e.g. by marrying a stranger to the child), the maternal grandmother, however distant.
- Then the paternal grandmother, however distant, on the maternal grandmother's death or forfeiture.
- Then the sister - full, then consanguine-through-mother, then consanguine-through-father.
- Then the niece - full, then through the maternal half-sister.
- Then the maternal aunt - full, then half through the mother, then half through the father.
- Then the niece through the paternal half-sister, the paternal niece, then the paternal aunt - full, then half through the mother, then half through the father.
- Then the mother's maternal aunt - full, then half through the mother, then half through the father.
- Then the father's maternal aunt - full, then half through the mother, then half through the father.
- Then the mother's paternal aunt - full, then half through the mother, then half through the father.
- Then the father's paternal aunt - full, then half through the mother, then half through the father.
- Thereafter, the male ʿaṣabah in order: the father, the paternal grandfather, the brother (full, then consanguine), the nephew (full, then consanguine), the paternal uncle (full, then consanguine), the paternal cousin (full, then consanguine), and finally dhū al-arḥām (the remaining maternal relatives).
Nafaqah, in Islamic law, denotes food, clothing, and lodging; as used here it refers specifically to the maintenance owed to a wife by a valid nikāḥ.
Nafaqah is obligatory on the husband regardless of the wife's wealth, regardless of whether the marriage was consummated, and regardless of whether she is Muslim or Kitābiyyah. It remains obligatory even where the husband himself is poor or in need.
During ʿiddat aṭ-ṭalāq, nafaqah continues for as long as the wife remains in the husband's home, whether the ṭalāq was rajʿī or bāʾin. Nafaqah is not obligatory, however, during the ʿiddah following faskh (annulment) or the husband's death.
| Case | Why |
|---|---|
| A murtaddah (apostate wife) | She has left Islam. |
| A wife in nikāḥ fāsid | The marriage itself is not sound. |
| A wife in the ʿiddah of a nikāḥ fāsid | Follows from the marriage's unsoundness. |
| Nāshizah (a rebellious wife) | Leaves the marital home without the husband's permission or a valid Sharʿī excuse. |
| A wife who remains with the husband only by night, or only by day | Not fully available to the marriage. |
| A wife who travels for Ḥajj with someone other than her husband or a maḥram | None |
| A wife who is abducted, imprisoned, or otherwise forcibly removed | None |
| A wife who is ill and has not returned to the husband's home | None |
Terms on this page
Related
- Who you cannot marry: blood relations and in-laws The blood relations and in-laws a Muslim can never marry, and how an in-law relationship comes to be prohibited.
- Guardianship in marriage Who counts as a wali, in what order they stand, and what a guardian can and cannot decide for someone else.
- Who you cannot marry: the other causes Beyond family and fosterage, marriage is also barred by combining certain women, by ownership, by religion, and by an existing marriage or waiting period.
- Who you cannot marry: fosterage (breastfeeding) Breastfeeding within the first two years creates a family bond that prohibits marriage in the same way blood kinship does.