Who is awarded custody of the children if the woman seeks divorce in exchange for paying the husband, and how much money does she pay him?
Machine translationRead the Arabic original
The questioner: Peace be upon you.
The Shaykh: And upon you peace.
The questioner : I am calling you from Berlin... I am the imam of a mosque... in Berlin.
The Shaykh : Yes.
The questioner : How are you, Shaykh?
The Shaykh : Praise be to Allah, I am well.
The questioner : I have a case... a man is married to a woman and they have four children, and the woman wants a divorce. What is the ruling regarding the children, and how much does she pay him, or how much money does she pay him?
The Shaykh : What do you mean by your question about the children?
The questioner : First, yes.
The Shaykh : What do you mean?
The questioner : I mean, Shaykh, it is known that if the children are, for example, seven or eight years old, they remain with the mother; the mother takes them, and then they are given the choice afterwards if the divorce is finalized.
The Shaykh : But you did not mention their ages.
The questioner : Yes, that is correct... Shaykh, the children are less than five years old.
The Shaykh : Okay, so what is the question regarding these small children?
The questioner : Yes, my question is whether they follow the mother or the father?
The Shaykh : Do you not live in an Islamic country to ask such a question?
The questioner : And what does an Islamic country have to do with this issue, Shaykh?
The Shaykh : Because who will judge, Shaykh, may Allah guide you. We know that in the lands of disbelief, if a man marries a woman and wants to divorce her, the children remain with her, over the father's objection, whether they are small or large.
The questioner : Yes.
The Shaykh : Do you not know this bitter reality?
The questioner : How, Shaykh? I did not understand.
The Shaykh : Do you not know this bitter reality?
The questioner : No, by Allah, Shaykh, this is the first time.
The Shaykh : Strange.
The questioner : Yes, yes, all my knowledge is that the ruling regarding the children is general, whether in an Islamic country or elsewhere.
The Shaykh : Subhan Allah, the disbelievers who do not judge by what Allah has revealed are judging by what Allah has revealed.
The questioner : And who judges by what Allah has revealed in these days?
The Shaykh : Yes, direct this question to yourself.
The questioner : In any case, Shaykh, it is a matter.
The Shaykh : Shaykh, may Allah guide you. If I told you the children belong to the father, can the father take the children over the mother's objection in the lands of disbelief?
The questioner : Yes, they agree... the Sharia ruling is what the Sharia prescribes, so they follow it because they are Muslims. The father and mother came to us to seek judgment according to the Sharia ruling, and there is no marriage contract between them or... rather, an Islamic Sharia contract was performed, so the Germans do not intervene in this matter.
The Shaykh : So, so the matter is by mutual agreement between them, as long as you say the spouses are Muslims.
The questioner: Yes.
The Shaykh : So if the husband divorces that wife, where will the divorced wife live?
The questioner : In her family's house; she has brothers and a father and mother.
The Shaykh : Are they Muslims?
The questioner : ... .
The Shaykh : I am asking, are her brother, her father, and her brothers Muslims?
The questioner : Yes, yes, Shaykh, an Islamic family.
The Shaykh : An Islamic family.
The questioner: Yes.
The Shaykh : Well, if they reconcile on something, the ruling proceeds accordingly, because the ruling in Islam regarding small children has two opinions. If they are small, as you mentioned, they follow the mother.
The questioner: Yes.
The Shaykh : And the father is responsible for their maintenance. And in the Sunnah, if the child is of discernment, he is given the choice between the father and the mother.
The questioner: Yes.
The Shaykh : Okay, but.
The questioner: Yes.
The Shaykh : If the mother is content to be without the children and the father agrees to that, there is no problem, as long as they separate with affection and not with hatred.
The questioner : In this matter, the mother does not want to give up the children; she only wants to know what the Sharia ruling is and accept it. It is not about reconciliation, but about submitting to the Sharia ruling. So my question, Shaykh, is that she is the one who wants the divorce, she is the one requesting the divorce. Does the ruling regarding the children... remain as it would if the husband divorced her?
The Shaykh : Yes, yes, here there is no difference between khul' and divorce.
The questioner : ... .
The Shaykh : The difference here is regarding the mahr: she must return the mahr to him. But regarding the children, she has the stronger right to the small children.
The questioner: Yes.
The Shaykh : Except for the exception I mentioned to you: if the child is of discernment, he is given the choice between the parents, and he has what he chooses. As for the small children, who holds them?
The questioner : I mean, he has, I mean, he might marry another woman who would hold them.
The Shaykh : That is not a valid consideration, because it is possible and not possible; that is not a valid consideration.
The questioner: Yes.
The Shaykh : I mean, as they say: a bird in the hand is better than ten in the tree. These children, until the father marries, their affairs will be neglected.
The questioner : And this man's mother is present in his house and loves them...
The Shaykh : In any case, my brother, you know the ruling. The small children who are not of discernment follow the mother. The one of discernment is given the choice, and that is all.
The questioner : and the one not of discernment waits until he is of discernment and then is given the choice, is that not so?
The Shaykh : It is not so; he follows the mother.
The questioner : Yes, he follows the mother, and if he reaches maturity afterwards.
The Shaykh : There is no new ruling afterwards; if he reaches the age of maturity, he follows his father.
The questioner : And this one is given the choice.
The Shaykh : No, the choice is not extended like that.
The questioner : Excuse me, according to the opinion of Shaykh al-Islam Ibn Taymiyyah in this matter, that the children, until they grow up, are in the custody of... so if they reach the age of discernment, they are given the choice.
The Shaykh : I do not remember this, and in any case, if you remember this opinion of Ibn Taymiyyah and base your case on it, you are free from that.
The questioner : Okay, Shaykh, regarding the mahr: if the woman returns it to the man, and if he bought clothes and gold with this money, is she obligated to return the money, or return the gold and clothes?
The Shaykh : Everything that was mahr, she must return it, unless he waives it.
The questioner: Yes.
The Shaykh : There is a strange sound here.
The questioner : She has seven thousand as mahr; does he take it, or does he take what she bought with it, clothes she bought with it?
The Shaykh : If she bought it, he demands the cash from her. If he bought it for her, he demands the items from her.
The questioner : Yes... Shaykh, may Allah reward you for us.
The Shaykh: And upon you peace.
The questioner : I am calling you from Berlin... I am the imam of a mosque... in Berlin.
The Shaykh : Yes.
The questioner : How are you, Shaykh?
The Shaykh : Praise be to Allah, I am well.
The questioner : I have a case... a man is married to a woman and they have four children, and the woman wants a divorce. What is the ruling regarding the children, and how much does she pay him, or how much money does she pay him?
The Shaykh : What do you mean by your question about the children?
The questioner : First, yes.
The Shaykh : What do you mean?
The questioner : I mean, Shaykh, it is known that if the children are, for example, seven or eight years old, they remain with the mother; the mother takes them, and then they are given the choice afterwards if the divorce is finalized.
The Shaykh : But you did not mention their ages.
The questioner : Yes, that is correct... Shaykh, the children are less than five years old.
The Shaykh : Okay, so what is the question regarding these small children?
The questioner : Yes, my question is whether they follow the mother or the father?
The Shaykh : Do you not live in an Islamic country to ask such a question?
The questioner : And what does an Islamic country have to do with this issue, Shaykh?
The Shaykh : Because who will judge, Shaykh, may Allah guide you. We know that in the lands of disbelief, if a man marries a woman and wants to divorce her, the children remain with her, over the father's objection, whether they are small or large.
The questioner : Yes.
The Shaykh : Do you not know this bitter reality?
The questioner : How, Shaykh? I did not understand.
The Shaykh : Do you not know this bitter reality?
The questioner : No, by Allah, Shaykh, this is the first time.
The Shaykh : Strange.
The questioner : Yes, yes, all my knowledge is that the ruling regarding the children is general, whether in an Islamic country or elsewhere.
The Shaykh : Subhan Allah, the disbelievers who do not judge by what Allah has revealed are judging by what Allah has revealed.
The questioner : And who judges by what Allah has revealed in these days?
The Shaykh : Yes, direct this question to yourself.
The questioner : In any case, Shaykh, it is a matter.
The Shaykh : Shaykh, may Allah guide you. If I told you the children belong to the father, can the father take the children over the mother's objection in the lands of disbelief?
The questioner : Yes, they agree... the Sharia ruling is what the Sharia prescribes, so they follow it because they are Muslims. The father and mother came to us to seek judgment according to the Sharia ruling, and there is no marriage contract between them or... rather, an Islamic Sharia contract was performed, so the Germans do not intervene in this matter.
The Shaykh : So, so the matter is by mutual agreement between them, as long as you say the spouses are Muslims.
The questioner: Yes.
The Shaykh : So if the husband divorces that wife, where will the divorced wife live?
The questioner : In her family's house; she has brothers and a father and mother.
The Shaykh : Are they Muslims?
The questioner : ... .
The Shaykh : I am asking, are her brother, her father, and her brothers Muslims?
The questioner : Yes, yes, Shaykh, an Islamic family.
The Shaykh : An Islamic family.
The questioner: Yes.
The Shaykh : Well, if they reconcile on something, the ruling proceeds accordingly, because the ruling in Islam regarding small children has two opinions. If they are small, as you mentioned, they follow the mother.
The questioner: Yes.
The Shaykh : And the father is responsible for their maintenance. And in the Sunnah, if the child is of discernment, he is given the choice between the father and the mother.
The questioner: Yes.
The Shaykh : Okay, but.
The questioner: Yes.
The Shaykh : If the mother is content to be without the children and the father agrees to that, there is no problem, as long as they separate with affection and not with hatred.
The questioner : In this matter, the mother does not want to give up the children; she only wants to know what the Sharia ruling is and accept it. It is not about reconciliation, but about submitting to the Sharia ruling. So my question, Shaykh, is that she is the one who wants the divorce, she is the one requesting the divorce. Does the ruling regarding the children... remain as it would if the husband divorced her?
The Shaykh : Yes, yes, here there is no difference between khul' and divorce.
The questioner : ... .
The Shaykh : The difference here is regarding the mahr: she must return the mahr to him. But regarding the children, she has the stronger right to the small children.
The questioner: Yes.
The Shaykh : Except for the exception I mentioned to you: if the child is of discernment, he is given the choice between the parents, and he has what he chooses. As for the small children, who holds them?
The questioner : I mean, he has, I mean, he might marry another woman who would hold them.
The Shaykh : That is not a valid consideration, because it is possible and not possible; that is not a valid consideration.
The questioner: Yes.
The Shaykh : I mean, as they say: a bird in the hand is better than ten in the tree. These children, until the father marries, their affairs will be neglected.
The questioner : And this man's mother is present in his house and loves them...
The Shaykh : In any case, my brother, you know the ruling. The small children who are not of discernment follow the mother. The one of discernment is given the choice, and that is all.
The questioner : and the one not of discernment waits until he is of discernment and then is given the choice, is that not so?
The Shaykh : It is not so; he follows the mother.
The questioner : Yes, he follows the mother, and if he reaches maturity afterwards.
The Shaykh : There is no new ruling afterwards; if he reaches the age of maturity, he follows his father.
The questioner : And this one is given the choice.
The Shaykh : No, the choice is not extended like that.
The questioner : Excuse me, according to the opinion of Shaykh al-Islam Ibn Taymiyyah in this matter, that the children, until they grow up, are in the custody of... so if they reach the age of discernment, they are given the choice.
The Shaykh : I do not remember this, and in any case, if you remember this opinion of Ibn Taymiyyah and base your case on it, you are free from that.
The questioner : Okay, Shaykh, regarding the mahr: if the woman returns it to the man, and if he bought clothes and gold with this money, is she obligated to return the money, or return the gold and clothes?
The Shaykh : Everything that was mahr, she must return it, unless he waives it.
The questioner: Yes.
The Shaykh : There is a strange sound here.
The questioner : She has seven thousand as mahr; does he take it, or does he take what she bought with it, clothes she bought with it?
The Shaykh : If she bought it, he demands the cash from her. If he bought it for her, he demands the items from her.
The questioner : Yes... Shaykh, may Allah reward you for us.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.