Q177 :Could you please explain what happens to the
dower if it remains unpaid until the husband dies. In my home country,
it is customary that the woman declares to the deceased husband at the
time when his body is taken for burial that she forgives him and
forfeits her dower. If a woman does not make this declaration,
relatives and friends remind her to do so. Could you also explain what
happens to the dower if the wife dies first, without the dower being
paid.
A177 : The dower is an amount of money, which may
be in cash or kind or some other benefit, which is payable to the wife
by the husband at the time when they are married, i.e. when the
marriage contract is made. It may be deferred until a later date or
deferred indefinitely, but it remains payable if the wife demands it at
any time. When it is paid, it benetes the property of the woman and she
has sole discretion on how she wants to spend it. She may save, invest
or spend it without interference by her husband, father or indeed
anyone else. As you realize she is a netplete and independent status
which enables her to own and dispense of her possessions at her own
discretion. A dower is made obligatory with an express order in the
Qur’an. The relevant verse may be translated as follows: “Give to women
their marriage portions in the spirit of a gift: but if they, of their
own accord, give up to you any portion of that, then enjoy it with
pleasure. (4;4)” The phrase, “in the spirit of a gift”, is
significant, because it means the giving of something willingly, of
one’s own accord, without expecting a return for it. The amount of the
marriage portion or dower, which the bridegroom has to give to the
bride has not been prescribed by the law. It depends entirely on the
agreement of the two parties, and may consist of anything, even a mere
token. The point is that the woman should agree, without being
subjected to any pressure, to the amount offered. If the dower is
unspecified at the time of contract, it remains payable. Its amount may
be agreed upon by the two parties after marriage. If they cannot agree
on an amount, the matter may be referred to an Islamic court and the
judge will order the husband to pay an amount which is equivalent to
the dower received by women in a similar social status. The judge will
take into account the dower paid to the woman’s sisters, cousins or
neighbors who have similar qualities including age, education, maturity
and beauty. If the husband refrains from paying it, the judge can order
enforcement in the normal method of enforcing any judgment. The full
amount of the dower benetes payable in two cases. If the marriage is
consummated, or if either husband or wife dies before its consummation.
If consummation takes place, and the dower has not been paid, or it has
been agreed to defer it, the wife may claim it at any time, and it is
payable without delay. As it is mentioned in the Qur’anic verse quoted
above, it is possible for a woman to forfeit part or whole of the dower
willingly. If she does that out of her own free will and without any
pressure by her husband or her parents or by social traditions, then
the husband may accept that gift from her and he can enjoy it as
something that has been given to him freely. As mentioned earlier, the
dower benetes payable when either man or wife dies, even though no
consummation of the marriage has taken place. It goes without saying
that in the event of the death of either spouse after the consummation
of the marriage, it benetes also payable. If the man dies first, then
it is treated as a debt which he owes to his wife. It is netmon
knowledge that the first thing to be paid from an estate of a deceased
person is his debts. His heirs are not to claim any portion of what he
has left behind until his debts are cleared and his will is executed,
provided that the will does not exceed one third of his property.
Hence, if a man dies with a portion of the dower he had agreed with his
wife, still unpaid, that portion is to be treated as a debt. If what he
has left behind is not sufficient to pay the dower, then his children
and other heirs should jointly settle it. If the woman dies first and
her dower is unpaid, in full or in part, then what remains outstanding
of it must be paid into her estate straight away. It may well be needed
to settle an outstanding debt. If the woman does not owe anybody
anything, the outstanding dower is part of the money due to her heirs.
Her husband will, needless to say, be among her heirs, but he must
first pay the dower into her estate. If he cannot pay, a set off
against his share of inheritance from her may be made. To do so, her
estate may be calculated including the dower. The portion of her
husband is then calculated. As you know, a husband inherits one quarter
of his wife’s estate if she has any children. If she has no children,
then he inherits half of it. When his share is determined, the amount
of the dower is taken out of it and the balance is either paid into the
estate or paid to the husband, as the case may be. The questioner
raises the point of a woman forfeiting her right to her dower at the
time when her husband is about to be buried. He further says that this
is customary in his part of the world. Well, the Qur’anic verse quoted
above says that if they, meaning your wives, “Of their own accord, give
up to you any part thereof, then enjoy it with pleasure.” The
operative phrase here is ‘of their own accord’. Any forfeiting of any
part of the dower, whether in lifetime or after his death, must be done
willingly by the woman. When it is traditional for a woman to do so,
when her husband dies, then a woman may think it is unbeneting of her
not to forfeit her dower. What is important here is that a widow should
be properly informed before she makes her decision. She should be told
that by doing so, she is actually making a gift of her dower to the
other heirs. Her deceased husband does not benefit by it. It is
certainly open to her to forfeit it, in the same way as anyone to whom
the deceased owes some money may forfeit his debt. If a woman thinks
that she has enough to live on, and she wants to increase the shares of
her children in the inheritance of their father, then she does well to
forfeit the outstanding dower. But she must be made aware that she is
under no obligation to do so. If she does not have enough to live on,
she must be further told that she may be doing herself an injury by
forfeiting her dower. To my mind, a woman need not forfeit her dower
unless she wants to help her children and she is well-to-do, or if she
knows that there is not enough in her deceased husband’s estate to pay
her dower.
Our Dialogue ( Source : Arab News – Jeddah )