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.
1The 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.
12During 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.
1| 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.
1The 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.
12During 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.
1| 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 |
This is the English translation of Nisab Ahle Khidmaat Sharia, exactly as the book has it, for the passages this page was written from. About 919 words. Switch back to Guide for the rewritten version.
Rulings of Divorce
17. Rulings of Custody:
- Custody of a minor is called "Hadanah." Unlike guardianship, where the father and his family take precedence, in custody, the mother and her family take precedence.
- The conditions for custody are: (a) The custodian (mother) must be free, adult, and trustworthy (a person of integrity).(b) The custodian must be capable of nurturing the child.(c) The custodian should not be married to a non-mahram (someone with whom marriage is forbidden).
Explanation: A non-mahram is someone with whom the minor has no blood relation of close kinship.
A woman who is a sinner, a thief, a deceitful person, someone who is careless with the child, or one who neglects the child by leaving it unattended is not eligible for custody.
If the custodian is a man, these conditions apply, except for the third condition (no marriage to a non-mahram).
- The right to custody belongs to the mother, even if she has been separated from her husband. However, if the mother becomes an apostate, she loses the right of custody until she accepts Islam again.
- The period of custody for boys is until the age of seven, and for girls, until they reach the age of maturity, i.e., at least nine years. If the mother or maternal grandmother is eligible for custody, she retains this right until the girl reaches adulthood.
- The persons entitled to custody, one after the other, are as follows:Order of Custody:
First, the mother. If she passes away or relinquishes her right [e.g., by marrying a stranger], then the maternal grandmother, even if distant (e.g., the mother’s maternal grandmother or her grandmother's grandmother). After that, the paternal grandmother [i.e.If maternal grandmother passes away or relinquishes her right], even if distant (e.g., the father's paternal grandmother or his grandfather's grandmother). Then, the sister (first the full sister, followed by the half-sister through the mother, and then the half-sister through the father). After her, the niece (first the full niece, followed by the half-niece through the mother). Then, the maternal aunt (first the full maternal aunt, followed by the half-aunt through the mother, and then the half-aunt through the father). After that, the niece through the half-sister (from the father), the paternal niece, and then the paternal aunt (first the full aunt, followed by the half-aunt through the mother, and then the half-aunt through the father). Then comes the mother’s maternal aunt (first the full maternal aunt, followed by the half-aunt through the mother, and then the half-aunt through the father). After that, the father’s maternal aunt (first the full aunt, followed by the half-aunt through the mother, and then the half-aunt through the father). Following that, the mother's paternal aunt (first the full aunt, followed by the half-aunt through the mother, and then the half-aunt through the father). Then, the father’s paternal aunt (first the full aunt, followed by the half-aunt through the mother, and then the half-aunt through the father).
After that, male agnates, starting with the minor child’s father, then the paternal grandfather, then the brother (first the full brother, followed by the half-brother through the father), then the nephew (first the full nephew, followed by the half-nephew through the father). After that comes the paternal uncle (first the full uncle, followed by the half-uncle through the father), then the paternal cousin (first the full cousin, followed by the half-cousin through the father), and finally the maternal relatives (Dhu al-Arham).
- A woman who has custody will not lose this right if she marries a close relative of the minor, such as an uncle.
18. Rulings of Maintenance (Nafqah):
- In Islamic law, maintenance refers to food, clothing, and housing. The term "Nafqah" in this context refers specifically to the maintenance of a wife with whom a valid marriage (Nikah) has occurred.
- Maintenance for the wife is obligatory for the husband, whether she is poor or rich, whether the marriage has been consummated or not, and whether the wife is Muslim or from the People of the Book. Even if the husband is poor or needy, he must still provide.
- If the wife is a minor (incapable of marital relations and intimacy), maintenance will not be obligatory.
- The maintenance of spouses should be according to their status (i.e., wealthy spouses should provide more, while poorer ones should provide less, and if one spouse is wealthy and the other poor, an equitable middle-ground should be adopted). Furthermore, the residence provided for the wife should not cause her undue hardship.
- If the wife stays at her parents’ home with the husband’s permission or refuses intimacy to collect the agreed-upon Mahr, maintenance will still be obligatory.
- During the waiting period (Iddah) after divorce, the husband must continue to provide maintenance as long as the wife stays in the husband’s home, whether the divorce is revocable (Raj’i) or irrevocable (Bain).
- Maintenance is not obligatory during the waiting period (Iddah) following annulment of marriage or death.
- The following women are not entitled to maintenance from their husbands:
- A wife who has renounced Islam (apostate),
- A wife in an invalid marriage (Nikah Fasid),
- A wife during an invalid waiting period (Iddah of Nikah Fasid),
- Nashiza (A rebellious wife) [who 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 day,
- A wife who goes for pilgrimage with someone other than her husband or mahram,
- A wife who is abducted, imprisoned, or otherwise taken away,
- A wife who is ill and has not returned to her husband's home.
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 guardian (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.