Compensating spouses for contributions made to the growth of the other’s estate

Question

If a monogamous religious marriage is treated as out of community of property without accrual, should there be judicial discretion to compensate spouses for contributions made to the growth of the other’s estate?

Contributions made to the growth of the other’s estate could either take the form of services or be monetary.

In the case of services rendered, if there was no agreement between spouses regarding remuneration, the assumption would be that each spouse contributed to the other altruistically and there would be no compensation for such contributions. However, in the words of our late Shaykh, Mufti Taha Karaan:

“When the wife’s contribution to the estate was made in a non-material form, such as the many years of unrewarded labour that often happens to be the case, then despite the acrimony of the termination of marriage, a dutiful, compassionate and fair-minded man would not find it beyond him to cede unto the woman a reasonable portion of an estate that did in fact benefit from her freely-contributed labour.”

In the case of monetary contributions, it will have to be ascertained on which grounds one spouse paid monies over to the other. If the understanding was that of a loan, then the relevant spouse should be paid out to the extent of the loan. If the understanding was that of a partnership or investment, then the relevant spouse should be compensated accordingly.

We do acknowledge that many wives are wronged within marriages due to their willingness to support their husbands and lack of knowledge of the Sacred Law. The remedy for this is educating spouses regarding their rights and obligations towards each other.

And Allāh knows best

MJC (SA)

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