Assalamu‘alaikum Warahmatullahi Wabarokatuh.
May peace be upon you by Allah mercy and blessing.
I am K, a housewife (36 years old) with two children (14 and 9). A year ago I sued divorce to my husband. In last 10 years of marriage, I often experienced domestic violences. Before the official divorce, my husband was no longer providing me and our two children a livelihood (nafkah). Until now after the divorce, he is not responsible for our life necessities, he does not communicate with his two children. From the Religious Court, the children custody is left to me by his will.

In our marriage, we bought a house on his behalf by credit from a state savings bank (BTN). We pay from joint property during marriage. Few months later, we renovated the house by inheritance from my parents. But after 3 years installments, the credit stopped because he was laid off (termination of employment). In order to pay off the credit, my parents had to pay the rest. Although already paid off, the certificate is still at BTN.  After the divorce we agreed to sell the house, my ex-husband insisted to ask half of sale proceeds without thinking of division for the living cost and children school. If we don’t obey him, he doesn’t want to sign the house sale.

My own parents are not willing if the house sale will be divided by two, without parts for their grandchildren. I’ve asked for a lawyer’s help to solve this, but there’s no solution yet. My questions:
1. How do I demand my ex-husband to provide for the children?
2. Can our two children get their rights in parts of the house sale?
3. Will my ex-husband take over my children custody anytime?
4. Can I ask for the joint property and the living cost of the children in Religious Court?
5. Can it be considered a debt when my ex-husband does not support the children?

Please answer, the one who is responsible for this section. Thanks.
K in Malang

Wa’alaikum salam Warahmatullahi Wabarokatuh.
Maam K who I am proud of.
When a person decides to marry and pledge to live together, he or she is entering a new life of responsibility and trust. Both sides live in a firm bond (mitsaqan ghalidzan). All things are done in a mutual agreement and joint work. Therefore it is true, the success of marriage is a joint success done by husband, wife and children.

Both parties have equal rights and obligations to be met, such as livelihood and childcare. In classical sense, the livelihood is in the husband, because husband is obliged to provide a good and proper livelihood for his wife and children (Al-Baqarah: 233). Looking at other verses, women are also very appreciated to work to earn for family needs. For example, the experience of Prophet Shuaib’s two daughters who work herding cattles (Al-Qashash: 23). Likewise in Al-Nahl: 97, human, men and women are encouraged to do good deeds, work well for themselves and families for a better life (hayatan thayyibah). This is a noble act, especially when the husband is unable to earn a living because of sickness or something else.

In the Islamic fiqh, the husband who is unable to provide for his wife and children can be considered indebted to his wife. The wife is entitled to ask for the repayment of the debt. But the wife also can let it go, as alms because of Allah Swt.

The fundamental difference, the livelihood obligations to wife will end by the end of marriage, the responsibilities to children are not limited by parents’ divorce, but continuing until the children reach adulthood (baligh) or able to live independently.

About custody, when  husband and wife are still in marriage bond, it becomes their obligations. In case of the divorce and the child is still under age (ie. seven) or does not yet have the independent option, the child will be taken care by the mother. When the child is able to choose, she or he is given an option to live either with mother or father.

In the Compilation of Islamic Law (KHI) article 105 affirmed, when there is a divorce, a) Custody of children who are not mumayyiz (above 12 years) is the right of the mother; b) Custody of a mumayyiz child is left to the child to choose between father or mother as the custody holder; c) Custody costs borne by the father.

From here, what you do in terms of Islamic law or positive Indonesian law is justified. Indeed the mother is entitled to take care of the children, and the (former) husband can be blamed for not providing income to children. The mother is also entitled to determine joint property, living cost and education of children, it is arranged in the positive law in Indonesia. But marriage laws in our country have not decided the punishment for a (former) husband who does not fulfill his obligations to provide for his children. Although there have been Religious Court decisions on such matters, the execution is very difficult.

There are two things can be emphasized to lighten the mother’s burden psychologically. First, in divorce, the issues of child care and property during marriage should be discussed as much as possible. It would be wise, if the two parties do not clash for the custody. Give them a chance to take care of their children, even if they are not in the same house anymore. Because prolonged dispute adversely affect the development of children psychology. Similarly in the problem of joint property, finish it in a good way according to mutual agreement. If necessary, calculate based on roles or contributions of each (including the mother’s parents) in purchasing the house.

This is what meant by divorce in a good way (sarahan jamilan) (Al-Ahzab: 28, 49). The divorce is relatively will not cause any new injury or damage to a good relationship (silaturahim).

Second, the parents’ sincerity to provide for the children is a noble deed, even more than charity in the way of Allah Swt. In the Hadith narrated by Abu Hurairah: Messenger of Allah (PBUH) said, “A dinar you spend in Allah’s way, or to free a slave, or as a charity you give to a needy person, or to support your family, the one yielding the greatest reward is that you spend on your family”. (Muslim).

“Indeed, my Lord extends provision for whom He wills of His servants and restricts (it) for him. But whatever thing you spend (in His cause) – He will compensate it; and He is the best of providers.” (Surah Saba ‘: 34-39)

For matters related with the positive law, you can consult with some organizations concerning family law with equality perspective, for example Savy Amira Surabaya, WCC Jombang, LBH APIK Jakarta or similar institutions in your areas. Wallahu’alam (And Allah knows best). []

 

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