Question
My wife and I divorced approximately two years ago. She has now approached the court to have the ṭalāq decreed and has also applied for interim spousal maintenance under Rule 43. What is the Islamic ruling regarding this? Am I still required to provide her with maintenance, and is it permissible for her to accept the interim maintenance awarded by the court?
Answer
If the husband has issued a ṭalāq, the marriage will terminate completely upon the expiry of the wife’s ʿiddah, even if the divorce has not been decreed or recognised by a secular court. Thereafter, an application to the court for a divorce decree should be made only for the purpose of having the Islamic divorce recognised under South African law. It is not permissible for a woman to approach the court for a divorce decree as a means of compelling her former husband to provide financial maintenance for the period after the expiry of her ʿiddah.
Consider the following:
1. A woman is generally entitled to financial maintenance from her husband throughout the marriage.
2. If the marriage ends through a revocable divorce, or through another form of separation while the woman is pregnant with the husband’s child, she maintains her right to financial maintenance until the expiry of her ʿiddah.
3. If the marriage ends through an irrevocable divorce, khulʿ, or faskh, while the woman is not pregnant with her former husband’s child, she is entitled only to accommodation (suknā) until the expiry of her ʿiddah.
4. After the expiry of her ʿiddah, a woman may not demand financial support from her former husband, except where he voluntarily provides such support as a gift.
5. It is not permissible for a woman to use the courts to compel her former husband to provide financial support after the expiry of her ʿiddah.
6. If she receives money from her former husband pursuant to a court order compelling him to provide such support, the money will be considered ḥarām for her, and she will be required to return those funds.
والله أعلم
And Allah knows best.
النصوص المستند إليها:
ﻭﻳﺠﺐ ﻟﺮﺟﻌﻴﺔ اﻟﻤﺆﻥ ﺇﻻ ﻣﺆﻧﺔ ﺗﻨﻈﻒ ﻓﻠﻮ ﻇﻨﺖ ﺣﺎﻣﻼ ﻓﺄﻧﻔﻖ ﻓﺒﺎﻧﺖ ﺣﺎﺋﻼ اﺳﺘﺮﺟﻊ ﻣﺎ ﺩﻓﻊ ﺑﻌﺪ ﻋﺪﺗﻬﺎ ﻭاﻟﺤﺎﺋﻞ اﻟﺒﺎﺋﻦ ﺑﺨﻠﻊ ﺃﻭ ﺛﻼﺙ ﻻ ﻧﻔﻘﺔ ﻟﻬﺎ ﻭﻻ ﻛﺴﻮﺓ ﻭﺗﺠﺒﺎﻥ ﻟﺤﺎﻣﻞ ﻟﻬﺎ. (منهاج الطالبين)
ﺗﺠﺐ ﺳﻜﻨﻰ ﻟﻤﻌﺘﺪﺓ ﻃﻼﻕ ﻭﻟﻮ ﺑﺎﺋﻨﺎ ﺇﻻ ﻧﺎﺷﺰﺓ. (منهاج الطالبين)