Indeed, the Prophet of Islam (PBUH) said:
Allah has not created on the face of this Earth anything more beloved by Him than freeing a slave, and He has not create anything on the face of this Earth more despised than divorce (Huddah, A)
Further, Allah Tells us in the Qur’an that:
If there appears to be discord between a wife and her husbandand if they desire reconciliation, then choose arbiters from thefamilies of both sides. Allah will bring them together; Allah is All-Knowing and All-Aware. (Qur’an 4: 35)
In the event that conflict occurs within marriage, the Qur’an requires that it is resolved through mutual consultation and open discussion. All efforts should be made for reconciliation between the two disputants.
Generally, the couple needs to make sincere and concerted efforts to try and work things out before divorce is even considered (At-Tuwaijiry, 2000). In extreme cases, for instance when a wife is insolent and has adamantly refused to reform, a multi-step process as outlined in the Qur’an (4:34) must be followed to prevent the marriage from becoming a battle field for perpetrating any other form of insubordination. However, this verse requires clarification as men often misinterpret it as a license for them to engage in some form of physical abuse against their wives.
Nonetheless, if some harmony between husband and wife is no longer possible, any one of them has the right to seek for divorce. Divorce confers on a Muslim husband or wife the right to terminate the marriage contract for reasons good, bad or indifferent. Many people especially ignorant
Muslims and non-Muslims believe that a married Muslim man can dissolve his marriage at any time by saying to his wife; “Talaq (I divorce you) Talaq, Talaq” at one occasion of his own free will and desire.
Islam outlines the procedure and categories divorce on the basis of who initiates it (husband/wife) and the conditions upon which it is initiated, as the proceeding section expounds.
FORMS OF DIVORCE
I. Unilateral/Talaq
This is initiated by a man and can be oral or written but the wife is entitled to a reasonable gift. Under traditional Islamic law, as the husband is financially responsible, and therefore at dissolution of the marriage would implicate financially, the law provides him with the unilateral, at
will, and without cause right to dissolve the marriage(Al khateeb, M. 2012)
However, the divorce should be after the wife has experienced her menstruations and before having sex with her husband. On his part, the husband should be sane, and exercising own discretion among others.
The procedure for Talaq
a) According to Qur’an (4:34), the husband is instructed thus;
“....But those (wives) from whom you fear arrogance- (first) advise them; then (if they persist), forsake them in bed; and finally beat them lightly. But if they obey you again, seek no means against them. Indeed Allah is ever Exalted and Grand.”
b) If after the light beating the woman does not reform, Qur’an (4:35) advises the husband to call for arbiters (a family council) especially those who witnessed the marriage. If reconciliation fails even after intervention of the arbiters, then Talaq should commence.
c) The husband initiates divorce proceedings by pronouncing, “I divorce you,” followed by ‘a cooling down and waiting period’ (Iddah) of 3 up to months. Divorce is pronounced three separate times, one after a menstruation period to provide opportunities for reconciliation and to confirm that the wife is not pregnant (Qur’an 2:228; Mwesige, A. H. 2010).
d) During the Iddah period, the wife should not be expelled from the marital home (Qur’an 65: 1) but the couple may sleep in separate bedrooms. If, at the conclusion of the waiting period the couple decides to reunite, a new marriage contract must be signed. Otherwise the divorce is finalized after 3 months, and the husband is required to give his wife her deferred mahr.
e) Couples can divorce and remarry up to two times, as the first and second divorces are revocable, but the third divorce is irrevocable (and the man and woman cannot remarry or have sex unless after the woman has remarried another man and divorced). Further, consecutive divorces should not occur within the same waiting period. If the wife is pregnant, the husband is financially responsible for her and their child for the duration of the pregnancy. Finalization of the divorce can be judicial, by registering the divorce with the court, or non-judicial, through the presence of two witnesses (Al khateeb, M. 2012).
Note:
Sometimes, instead of pronouncing “I divorce you” to his wife, the husband may opt to compare her with his mother or any other female within the prohibited category. Such an act still constitutes in similar regards as the pronouncement of talaq. Divorce under such circumstances is Talaq known as Zihar.
Statutory Provisions of Talaq
· As per the laws of Uganda, Section 5(1) (a) of the Marriage and Divorce of the Mohammedan Act, requires the registration of divorce by the husband within one month from the date of divorce. The method of divorce to be carried out has to be in conformity with “rites and observance of the Mohammedan religion” as considered under Section 2 of the Marriage and Divorce of the Mohammedan Act.
· However, the Act does not provide details of the procedure of divorce. This implies that a Muslim should refer to the Quran and the traditions of the prophet Muhammad (PBUH) as the procedure discussed in the foregoing section.
· Section 5(1) (b) (i) considers the divorce other than Khula, by the man who has effected it to register the divorce. Form B of the schedule to the Act provides the format for the registration of divorce. The Form provides the details of the divorce, the manner in which it has to be implemented, names of the witnesses to the divorce, among other details.
II. Khul’a
This is divorce initiated by the wife and is invoked where the wife considers that it is extremely difficult for her to pull on with the marital tie with her husband. Khul’a divorce is enforced by means of appropriate words spoken or written by the two parties or their respective agent by whom the wife requests and the husband accepts in return for a mutually agreed amount as compensation out of her property (dowry) for the release of her marital rights. Allah says in the Qur’an:
“Hence if you have cause to fear that the two may not be able to keep within the bounds set by Allah, there shall be no sin upon either of them for what the wife may give up(to her husband) in order to free herself” (2:229)
As the case with Talaq, a waiting period of 3 menstrual cycles is observed within separate quarters of the marital residence to provide an opportunity for reconciliation, and to ascertain that the wife is not pregnant. However, the divorce is pronounced once but it is irrevocable and the husband is not allowed to take the wife back without her consent or fresh marriage. If the wife is pregnant, the husband supports her until birth, and the child until adulthood. If not pregnant, the divorce is finalized and the wife returns her mahr to her husband.
Khul’a may be effected by the spouses when they are sure that it is difficult to keep the limits of Allah during the wedlock and consequently they part from each other. Alternatively, by a person vested with authority among the Muslims like a judge (Khadi) who considers the limits of Allah will be broken if separation is not ordered. In such an apprehension the judge may order dissolution of marriage (nikah) on payment of some compensation by the women to the husband.
Such separation demands that the wife gives something in return and with pronouncement of the word ‘divorce’ It can be achieved through mutual agreement of the parties or through the order of the court, where the amount of payment is agreed upon by the parties, the Khadi may assess in accordance with Sharia, the amount having regard to the status and the means of the parties.
Grounds for Khul’a Divorce
Just as the husband, the wife should not decide on divorce without justifiable reasons. If the wife wants to divorce just because she wants to change men but was not abused in any way by her husband, it may be granted but will never enter paradise, as the prophet emphasized:
“If any woman asks her husband for divorce without some strong reason, the fragrance of the garden will be forbidden to her.” (Abu Dauda)
i. Husband’s failure to provide the wife with sustenance and housing.
ii. Cruelty or habitual maltreatment such as quitting conjugal domicile without making provision for wife (desertion)
iii. Inability of the husband to satisfy her sexual needs for instance if he becomes impotent.
iv. If the husband denounces Islam.
v. If both husband and wife were non-believers and the wife accepts Islam
vi. If the wife was just forced into the marriage.
vii. Insanity of the husband.
viii. Non – fulfillment of the terms of the marriage contracts which they had agreed upon before Nikkah and any other related causes which in the opinion of the court, Khadi justifies a divorce
Statutory Provisions for Khul’a
a) Section 5(l)(b)(ii) of The Marriage and Divorce of the Mohammedans Act provides for registering the Khul’a divorce by the man and woman jointly or by her guardian (Vakil/Wali)
b) Section 5(2) provides that nothing shall prevent a woman to register the divorce if the man fails. This means that a woman can proceed to register her divorce even though the husband is not willing to do so.
c) Section 8(l) (b) (ii) provides that the register for the Khula divorce shall be signed by man and woman, or by her guardian and by the person identifying the man and woman (witness). If the man belongs to the Shiah sect, then two witnesses are required for to the divorce to be effected.
d) Particulars for the Khul’a divorce if effected; especially the amount of dowry, whether was acknowledged by the wife in person before the registrar and other details are contained in the Divorce Register under form B of the schedule to the Act under item 12.
Remember that Khul’a is equal to a single irrevocable divorce. A man has no right to revoke it. It’s according to the will of the woman. However, if the woman agrees to remarry the same man she can with the consent of the man.
III. Fask (Judicial Annulment or Abrogation of Marriage
Faskh is a decree by the Khadh (Judge) after the careful consideration of an application by the wife. This brings an end to marriage. The juristic basis for Faskh has been deducted from the Holy Quran 2:229 which provide that;
“The parties should either hold together on equitable terms (bi-ma’aruf) or separate with kindness (bil-ihsan)”
As is the case with the Talaq and Khul’a, a waiting period of 3 months is observed to confirm whether the wife is pregnant. If the wife is pregnant, the husband supports her until birth, and the child until adulthood. If not pregnant, the divorce is finalized and the husband gives his wife her deferred mahr.
Muslim jurists identify the grounds for Faskh as follows:
a. Defect in the husband:
According to the Malik, Shafii and Hanbali schools of thought as against Hanafi school view (which gives the right only to the wife) each of the married couple is entitled to get the marriage contract dissolved due to disease and physical defect. There is right of separation on defects of leprosy, madness, leucocythaemia and impotency. The Shafii School argues that the basis on which the right of separation is the infectiousness of the disease that is passed from the husband to the wife.
b. Non providing maintenance:
Muslim Jurists differ in opinion among regarding the right of a wife to seek Faskhon the basis of lack of maintenance from her husband: The Malik argue that the wife is entitled to claim divorce of her marriage through Faskh if the husband is unable to provide for her maintenance at the time of the claim, regardless of whether he provided for her previously, unless the wife was aware at the time of marriage that the husband was indigent.
If the husband’s poverty is not legally established, the Khadh will order him to provide for her maintenance or to divorce her. The dissolution of the marriage takes the form of Talaq pronounced by the Court if the husband fails to pronounce it.
On the other hand, the dominant Shafii view is that, if the husband is present but unable to maintain his wife, the wife is entitled to a judicial dissolution of her marriage.
c. Separation on account of cruelty
The wife is entitled to ask the Court for the decree of divorce, if she fears that the husband will injure her person to such an extent that she is unable to live with him as husband and wife. Examples are where the husband habitually assaults her or injures her in such a way that is unbearable, abusing her or forcing her to stay or do something which is wrong, among others.
d. Permanent emigration of the husband to another country.
e. Life imprisonment of the husband or when turns an fugitive
f. Impotence of the husband
IV. Lian/Divorce on Oath
If a husband puts forward slanderous accusation against his wife or a wife against her husband, the Holy Quran lays down the procedures under (24:6-7) and 24:8-9). If a husband accuses his wife of adultery, he has to bring four witnesses to prove his case. Without the four witnesses, the husband must swear upon Allah that he speaks the truth, four times and at the fifth that the curse of God be on him if he is a liar. Against this if the wife also swears by Allah four times that her husband is being deceitful, if she invokes Allah’s Wrath on her if her husband is telling the truth, then a deadlock ensues.
Consequently, the husband is absolved from the charge of slander and falsely accusing his wife and the wife is also absolved from the false charge of infidelity. When things come to such extreme, it is no longer fit that they should continue to be husband and wife and the marriage is held by the Khadh to be dissolved. Whatever happens, once the Oaths are taken, the marriage will be dissolved since it is quite impossible that the spouses would ever be able to live in peace and harmony after such an experience.
Still, the Iddah period of 3 months is observed with the husband maintaining the wife, without having sex to ensure that she is not pregnant. If she is pregnant, he is to look after her until the child is delivered.
V. Tareeq
This is granted when after consummation of the marriage, the wife wants a divorce but the husband refuses to give it. Once the arbitrators agree that Tafreeq should be pronounced the marriage is dissolved after the end of the iddah period.
The foregoing categories and procedure for divorce in Islam notwithstanding, we may still wonder how in reality a husband and wife divorce each other. Here, is a practical procedure of dissolution of marriage on the basis of Islamic jurisprudence in Uganda.
PRACTICAL PROCEDURE OF AN ISLAMIC DIVORCE
In the event of the divorce, Muslims believe that an Islamic divorce is necessary to terminate the marriage contract, for complete assurance that they are divorced. Since the civil court cannot pronounce Islamic divorces, a Muslim must apply to the qadhi court to obtain a Sharia based divorce.
Divorce in Qadhi courts
· The Qadhi is an informal court system in Uganda with limited mandate to handle marriage and divorce, inheritance, succession and guardianship cases in line with the Islamic law. It only applies to Muslims who chose to seek family justice through Islamic law.
· There is a Qadhi court at every Juma (special Friday prayer) mosque in Uganda. All Qadhi courts operating in Uganda belong to one of the four recognized Islamic schools of thought; Hanafi, Shafi`i, Maliki and Hanbali. We have however described the practice at the National Mosque located at the UMSC headquarters Old Kampala.
Islamic divorce process at the national mosque
a. Petitioner: husband
Men can divorce their wives unilaterally by pronouncing talaq three times either consecutively or on three separate occasions on the basis of the Islamic school of thought by which the married couple abide. Once talaq has been pronounced, the wife enters the Idda period which lasts for three menstrual cycles (three months). If the husband and wife reconcile within the Idda period, the marriage continues. In the event that they have not reconciled within the Idda period, the marriage comes to an end. If the wife is pregnant, she will have to wait until the child is born before the Idda period commences. Although the husband is able to divorce his wife unilaterally without involving a Qadhi Court, the husband and/or the wife may apply to the Qadhi Court for an Islamic talaq certificate, which can be used as evidence that the couple is now divorced.
b. Petitioner: Wife
Unlike men, women cannot unilaterally divorce their husbands. As a result, majority of Islamic divorce petitioners at the National Mosque Qadhi Court are women. When a wife approaches the Qadhi
Court to obtain a divorce she is asked to complete an application form, provide a valid identification card, together with a copy of her marriage contract and pays a minimal fee to the court when issued with a divorce certificate. If the petitioner does not have a copy of the marriage contract, she will be required to provide the Qadhi Court with a sworn statement along with evidence such as wedding photographs that the marriage took place.
At the application stage, the wife is required to justify the ground(s) for the divorce. The National Mosque applies grounds of Islamic divorce: for example; desertion, intolerance of a husband, consumption of alcohol and/or drugs among others. However, the petitioner must provide as much evidence as possible to substantiate her case. For example, if the petitioner alleges domestic violence, she will be asked to provide copies of court orders, medical reports and police records. Upon completion of the application process, the petitioner is invited to meet with the Qadhi Court’s unit to discuss the marriage breakdown.
Following the reconciliation meeting, the Qadhi Court sends the Respondent up to three letters/notices, putting the Respondent on notice of the Petitioner’s divorce application and requesting an immediate response. If the Respondent replies to the Qadhi Court’s letter, a joint reconciliation meeting between the parties is arranged, providing both parties agree.
If the Respondent does not reply to any of the Qadhi Court’s letters or the joint reconciliation meeting is unsuccessful, the next stage involves the parties presenting their case before the panel of arbitrators. Usually, three National Mosque Qadhi court arbitrators sit once in a month during which they rule on over five divorces.
At the final hearing the petitioner presents her case orally before the judges. Although respondents rarely attend, if they do they are also given the opportunity to present their case in the presence of the petitioner or separately. Both the petitioner and Respondent are asked to bring to the final hearing two witnesses to the events surrounding the marital breakdown. If they are unable to produce two witnesses they must provide reasons for their failure. In such circumstances, it is usual practice for the arbitrators to continue to arbitrate without the required witnesses. If the petitioner and respondent have children of the family, the petitioner is asked about current contact arrangements.
On the basis of the case presented, the arbitrators decide whether the petitioner should be granted a Sharia divorce and if yes, what ‘type’ of divorce should be granted. This usually depends on the petitioner‘s and respondent’s circumstances. The UMSC recognizes three types of Sharia divorce following a wife’s petition:
(i) Khul’a, which is given when after the marriage has been consummated, the wife asks her husband for a divorce and he agrees. Once a khul’ahas been pronounced and the Idda period ends, husband and wife are divorced.
(ii) Tafreeq (dissolution) is granted when after the marriage has been consummated, the wife asks for a divorce but the husband refuses to give it. Once the arbitrators agree that a tafreeq should be pronounced and the Idda period ends, the marriage is dissolved.
(iii) Faskh (annulment) is pronounced by the Qadhi Court when a marriage is fundamentally flawed (e.g. forced marriage) and the marriage has not been consummated. Once the divorce is finalized the petitioner and respondent are issued with an Islamic divorce certificate.
Note:
There is a need to make a distinction between divorce and separation in Islam: If a husband and wife separate without undergoing any of the aforementioned forms of divorce, this does not amount to divorce in Islam. This is because if any of the aggrieved party contends that the other has separated from them, they can bring it as a substantial ground for the dissolution of a marriage contract.
REMEDIES OF THE PARTIES UPON DIVORCE
Court granting relief
Although the Marriage and Divorce of the Mohammedans Act, does not prescribe the remedies of the parties upon divorce, the court gives this relief. For instance,
Article 31(1) of the 1995 Uganda constitution grants men and women of the age of 18 eighteen and above the right to marry and found a family and are entitled to equal rights in marriage during marriage and its dissolution. Section 19 of the Act specifically provides that the Divorce Act shall not be applicable to parties who are married under Muslim Law.
Thus, the Divorce Act cannot be applied to Muslims who have contracted their marriage under Marriage and Divorce of Mohammedans Act. However, any competent court empowered to grant relief as provided for under Islamic law to the aggrieved party. Also, the High Court may exercise its inherent powers and grant appropriate remedies in accordance with Muslim law.
Islam grants various ancillary orders to the wife upon divorce as shown below;
i. Mahr:
Where the dowry has not been paid and has not been remitted to the wife, upon divorce, the wife is entitled to payment of the unpaid mahr and it is a debt against the husband. This is a woman’s right on the basis of Quran (4:4)as discussed already.
ii. Maintenance of wife
Quran (65:6) provides the wife with the right to maintenance by the husband after dissolution of marriage, Allah Says:
Let the woman in Iddah in the same style as you live according to your means, annoy them not so as to restrict them. And if they carry life in their wombs then spend your substance on them until they deliver their burden.
Thus besides the obligation of maintenance, the man is also expected not do anything that may annoy the woman. If the woman is pregnant at the time of divorce, the husband is expected to support her until she delivers.
Although Sharia does not specify how much the husband can spend on the woman, it gives guidance that it should depend on one’s financial ability: the rich according to his means and the poor according to his means Quran (65:6-7).
iii. Right to Accommodation
Islam entitles a divorced woman to a suitable accommodation during the Iddah period. This right is considered in Quran (65:1);
When you divorce a woman, turn them not out of their houses nor should they themselves leave except in case they are guilty of some open lewdness.
According to Shafii School, such rights to accommodation cease at the expiry of the Iddah period; when the woman remarries or when she is proven guilty of open lewdness.
After the Iddah period a woman should find her own accommodation. In situations where the woman has custody of children, the husband is expected to provide a suitable accommodation to the divorced wife and her children until she remarries.
iv. Consolatory gift (Muta’ah)
This is a gift which is paid to a woman when the divorce has not been caused by any defect on her part or by an application for fask for a defect or fault of the husband. In addition to their right to apply for maintenance, the Sharia provides that a woman who has been divorced without just cause by her husband may apply to the Qadhi for the consolatory gift, and the Qadhi after hearing the parties and being satisfied that the woman has been unfairly divorced, may order the husband to pay such sum as may be fair and just according to Sharia. The husband not only pays Muta’ahin the case of Talaq but also in case of Khul’a.
The purpose of this gift is to lessen the burden and difficulties caused by the divorce as well as to alleviate the suffering about hatred which may have been caused by the divorce.
In this regard the Quran (2:241)says:
“For divorced women Muta’ah should be provided on a reasonable scale. This is a duty on the righteous.”
Also Quran (33:49):
“So give them a present and set them free in a handsome manner.”
And:
There is no blame on you if you divorce women before consummation or the fixation of their dower but bestow on them a suitable gift the wealthy according to his means and the poor according to his means – a gift of a reasonable amount is due from those who wish to do the right thing.(Quran 2:236)
The amount of Muta’ah normally depends on the agreement of both parties.Where parties fail to reach an agreement, it is fixed by the Qadhi. As the Islamic law stipulates, the amount of Muta’ah is fixed on the basis of the financial position of the parties, the status of family in the society and the position and circumstances of the wife.
v. Matrimonial property
Upon divorce, Islam considers one’s personal property and jointly acquired property separately when providing guidelines to distribution of property between spouses. The Quran (4:32) says:
Unto men a fortune from that which they have earned, and unto women a fortune from which they have earned (envy not one another) but ask Allah of His bounty. Surely! Allah is Ever All-knower of all things.
Thus both men and women possess an earned fortune each; they each have the capacity to earn a living through their respective efforts. The guidelines on distribution of property between husband and wife also applying case of death of either party and each has respective shares as provided under Quran (4:12)
The concept of matrimonial property in Islam is slightly different from that of common law. Different factors have to be established as discussed below:
a. Woman as an independent personality
In Islam, a woman is an independent personality: She can enter into business; make contract or testament in her own name; own, sell, gift or manage her property including her Mahr:
But if you decide to take one wife in place of another, even if you had given the later a whole treasure for dower, take not the least bit it back.(Quran 4:20)
Further, the woman is entitled to inherit as mother, wife, sister and daughter. The Quran was clear and did not leave it to the discretion of woman’s relatives to decide her share of property. Not only were her rights to inheritance defined, but also her share specified:
“From what is left by the parent and those nearest related, there is a share for men and a share for women, a determinate share, be the property large or small.” (Quran 4:7)
Similarly, Article 26(2) of the Constitution of Uganda 1995 provides that “Every person has a right to own property either individually or in association with others”. Also Article 31(1) (b) accords spouses equal rights in marriage and upon its dissolution.
b. Jointly acquired property
There seems to be no explicit injunction in Qur’an or Sunnah regarding the distribution of matrimonial property upon divorce. Most authorities suggest that when property has been acquired with joint efforts or contribution, then it can be distributed between the spouses. While jurists suggest that a written agreement be made in case of any joint ventures between husband and wife, to avoid problems that may arise in future.
Uganda’s judicial position on the sharing of matrimonial property was recently considered in the Supreme Court’s decision in JULIUS RWABINUMI VS HOPE BAHIMBISOMWE. The couple had been married under the Marriage Act. This decision provides the state of affair before the legislature comes out with a proper law on the division of property upon divorce. Although it was not an Islamic marriage, the above decision brings up issues which are similar to matrimonial property concepts under Islamic law concept of partnership. In particular, the justices concluded that marriage vows alone do not entitle one to share matrimonial property. The 50% sharing of matrimonial property upon divorce is not automatic and it is dependent on many factors: The property acquired before marriage does not form part of matrimonial property unless otherwise intended. In addition, a person is entitled if he/she contributed to the acquisition of the property and not by virtue of marriage contract. Each spouse is free to individually acquire property without the other and if parties wish the property to be jointly owned should document it.
CHILD CUSTODY AFTER DIVORCE
Children are usually the forgotten victims of divorce of their parents but they usually suffer the bitter consequences of deprivation of needs and an opportunity to be raised in a normal family with their mother and father. Most often, divorced couples fight over the custody of children and end up in court. Fortunately, the Shariah is very clear as it highlights the people suitable to have custody in order of priority.
Reference is made to a precedent of how the prophet (PBUH) handled cases about child custody. Amru b. Shuaib,Musnad Ahmad, SunanAbiDawud , and Mustadrak al-Hakim reported that a woman went to the Prophet (PBUH) and said:
“Truly my belly served as a container for my son here, and my breast served as a skin bag for him (to drink out Of) and my bosom served as a refuge for him: and now his father has divorced me and he (also) desires to take him away from me”
The Prophet (PBUH) said:
“You have a better right to have him as long as you do not marry again”
Thus a mother is recognized as the fittest person to take care of the child due to the close relationship, love and tenderness mothers usually and naturally have for their children. Nonetheless, this right ceases when the mother remarries. Then custody is passed on to the next female relative on the basis of eligibility in the child’s interests. This does not imply that the father has no right or obligation towards his child; he still is still responsible for maintenance and monitoring the Islamic and general welfare of the child.
The issue of Age
When the boy reaches the age of seven, he chooses which parent he would like to stay with. However, if he chooses a parent who would not take good care of him, his choice would not be approved. Once the boy reaches the age of puberty he may stay with whoever he wishes.
The girl’s father has the right to her custody once she is seven years old, only if this arrangement is in her best interest. The girl stays with her father from the age of seven until she moves out to her husband’s. Al-Tuwaiji (2000).
Thus, child custody lasts until marriage consummation for a girl child and up to puberty for a boy child. After that time, the boy child is free to choose to stay with whosoever of their parents or relatives they want. Once a woman came to the prophet (PBUH) and said;
“My husband wants to take my son away from me”
The prophet (PBUH) said to the child;
“This is your father and this is your mother, so take the hand of whom you like.”
The boy took the hand of the father and they went together (Sunan al-Tirimidhi).
Order of priority of child custody under Sharia
The Malik School of jurisprudence lists the people suitable for custody of children after divorce or death as follows:
i. The children’s mother
ii. Mother’s mother
iii. Mother’s grandmother (first maternal then paternal in absence of the former)
iv. Mother’s sister (full, then maternal, then paternal)
v. Grandmother’s sister
vi. Mother’s aunt
vii. Father’s mother or grandmother
viii. Father
ix. Child’s sister
x. Father’s sister
Provision for children after divorce
However, the child’s wellbeing and best interests are considered first before anything. Islamic Law takes into account the needs of children after divorce in a way that protects their best interests:
a. The financial support for children both during marriage and after divorce rests solely on the father. The amount is open for negotiation and should be in proportion with the husband’s financial means. However, the constitution of Uganda provides that it is a duty of both parents to look after their children. To this extent, both parents are equally responsible.
b. Fairness: the Quran advises the husband and wife to consult each other in a fair manner regarding their children’s future after divorce (2:233). This verse specifically holds that infants who are still nursing may continue to breast feed until both parents agree on the period of weaning through “mutual consent and counsel.’’ This spirit defines a co-parenting relationship.
c. Best interests of a child; Islamic law stipulates that physical custody of children must go to a Muslim who is in good physical and mental health, and is in best position to meet the children’s needs. Some have ruled that custody is awarded to the mother if the child is under a certain age and to the father if the child is older. Others would allow the older children express a preference.
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