Part 12

When the woman is qualified to give gifts or donations [such as when she is adult] and the husband agrees to accept the dower as a gift, [she may return the entire dower to the husband], regardless of whether that was before she took possession of the dower or afterwards.

Giving a gift of a dower differs from freeing the husband of the responsibility of paying the dower in that giving the dower asa gift applies when the dower is a debt upon the husband or it is something specific that he is to give, or something like cash or a specific article of clothing or an animal. However, freeing the husband of responsibility of paying the dower is only when the dower is a debt upon the husband.

‘The Figh of Marriage

The Ruling Concerning Paying the Dower on the Spot or over Time

It is proper for the dower to be paid either promptly or over time. It is also proper if part of it is paid promptly and the remainder is to be paid ata later time. This is because it is a type of transaction and, therefore, it is allowed to be delayed, in the same way that one may pay for the price of something over time. The portion that is to be paid at the time of the marriage is to be given to the wife before consummation and she may refuse the consummation until it is given to her.

As for the delayed portion, it is what is agreed upon between the two spouses to be delayed until after consummation.

The jurists state that it is acceptable to pay the dower at a later time [if such is agreed upon]. The Hanafis say,!

It is sound for the dower to be promptly paid or all of it delayed or part of it delayed until a near or far off time, or even until whatever occurs first of divorce or death, depending on the customs and manners prevalent in any Islamic country. However, this is conditioned by the time set not being completely unknowable, such as “when the gale wind blows,” or “when it rains.” It is not allowed to agree to such a timing that is completely unknown. If the two explicitly agree that the dower shall be paid off in payments, such is supposed to be done [even if it goes against the prevailing customs]. This is because the agreement is an explicit type of sign while the custom is only an indication. The explicit sign is stronger than the indication. If they do not agree to pay the dower promptly or to delay its payment, then one goes by the prevalent custom of that_country because “what is known. to be custom is equivalent to a condition that is stated.” If there is no prevalent custom concerning prompt or delayed

' Badaai al-Sanaai, vol. 2, p. 288.

The Figh of Marriage

payment, the dower can be demanded in full at the present time [of the marriage]. This is because the ruling in the case where delay is not specifically mentioned is that of prompt payment because prompt payment is actually the original or basic ruling.

The Shafi’ees! and the Hanbalis? allow the delaying of payment for all or part of the dower on the condition that the timing is known. This is because the dower is a compensation in a transaction and if its payment is left open, it is then to be due immediately. If it is delayed until an unspecific time, such as “when Zaid arrives” or “when it rains,” it is not sound because its actual time is unknown. However, according to the Hanbalis, if the dower is left to be paid at a later date and such a date is not specified, it is to be paid when the two separate or upon the death of one of them. According to the Shafi’ees, such a dower is void and the woman is to receive the dower of those who are similar to her.

The Malikis? distinguish between different cases when it comes to delaying the payment of the dower. They say that if the dower is something specific and present in the town, such as a house, clothing or animals, the groom must give it to the bride or her guardian on the day of the contract. It is not allowed to state in the contract that the dower will be paid later, even if she is pleased with such a delay. Sucha condition in the contract voids the contract. The exception is if the time stated is something very soon, such as two or five days. Furthermore, it is allowed for the woman to allow a delay in the payment without that being made a condition in the contract though. In other words, it her tight to receive the dower as soon as possible.

If the dower is something specific that is not in the city, the marriage contract is valid if the payment of the dower is specifically stated to be delayed a little. The time limit is such that the article being given as a dower will not change due to the elapsed time. Otherwise, the contract is void.

5 Al-Majmoo, vol. 15, p. 484. Al-Sharh al-Sagheer, vol. 2, pp. 432-433. Al-Mughni, p. 122; al-Insaaf, vol. 8, p. 244.

‘The Figh of Marriage

If the dower is not a specific item, such as simply cash, an amount or weight of something, it is then allowed to delay its payment, either in part or in toto. It is allowed for it to be delayed until a time that is known [and not ambiguous], such as the time of harvest, summer or the gathering of the fruits. One may also delay the payment until it is easy for the groom to pay it, if he is a person of means, such as if he has some merchandise for which he is waiting to receive its price or if he has a regular salary. However, if the groom is poor, such is not valid. It is also allowed for it to be delayed until the bride demands it, which would have the same ruling as delaying it until it is easy for the groom to pay it.

Therefore, there are two conditions that must be met in order for it to be permissible to delay the payment of the dower. First, the term for the payment must be known. If it is unknown, such as agreeing to delay it until death or separation, the contract becomes void. It is a must to annul the contract unless the man has already consummated the marriage, in which case it is obligatory for the woman to be paid the dower which is paid to women similar to her.

Second, the time period for the payment must not be a lengthy one, such as fifty years or more. In this case, it would be similar to not having a dower in the first place. Consummating the marriage upon not having a dower voids the marriage.

In sum, I have mentioned to you what I have come across of the statements of the jurists, their different views and resulting opinions concerning this issue. The truth that one must not deviate from is the following:

If the delayed payment is for a specified time and meets the conditions just stated above and it is done for the benefit of the two spouses or for the benefit of one of them, then the delay in payment is permissible, although it goes against what is preferable. Delaying the payment of the dower was something unknown at the time of the Prophet (peace be upon him). Furthermore, one must not make an analogy between marriage and any other type of transaction. If the delayed payment is to be made upon death or divorce, this leads to many negative results due to its uncertainty. No one except Allah knows when one’s time will come and also no one knows if or when divorce will

The Figh of Marriage

come about. One of the greatest negative results from such a practice is that it puts the man into a situation where he keeps his wife, although he has_no desire for her, only because if he divorces her he knows that she will then seek her dower. This will also cause other problems either from the side of the husband, who will try to force the woman to ransom herself from the marriage and give up her rights, or from the side of the wife who may try to force the husband to do what he does not want to do.

Therefore, the truth is that agreeing to delay the payment of the dower until divorce or death is a phenomenon that should not exist in Muslim marriages. Allah knows best.

The Ruling Concerning a Portion of the Dower Paid in Advance or a Gift Given to the Bride in the Case Where the Man Decides Not to Marry the Woman

It is a’ common custom to give the dower before the marriage contract takes place. It is also a common custom for the man to present his fiancée with plenty of consumable gifts and other items in order to strengthen the bond of love and closeness between the two. If such premarriage dower or gifts are given and then it turns out that the marriage is not performed, due to some reason from his side or her side, a question arises concerning what has previously been given by the man. The scholars agree that if what was given was supposed to be part of the dower and it still exists in its original form, then the man may request all of it back.

However, if that money was used to purchase the furniture, for example, of the new couple’s house, then there are two opinions among the jurists as to whether the value of the dower must be returned or what was purchased with the money must be returned. The first opinion is that it is obligatory to return what was given as a dower. This is because the dower is giving in exchange of enjoying the wife and the contract was not completed, so exactly what was given, if it still exists, must be

‘The Figh of Marriage

returned. If what was given has been used up or consumed, then its value must be returned, This is the view of the majority of the jurists! The second opinion is that whatever was bought for the house is not to be returned if such was bought with the man’s permission, knowledge or according to the prevailing custom. Otherwise what was given as a dower is to be returned to the man. This is the view of the Malikis.?