Al-Takyīf al-Fiqhī for the Shared Properties between Spouses in the Light of Jurisprudential Evidence التكييف الفقهي للأموال المشتركة بين الزوجين في ضوء الأدلة الاجتهادية

• Main Authors: Suleiman, Hassan, Eletrebi, Mohamed Fathy
• Format: Article
• Language: Arabic
• Published: USIM PRESS 2021
• Subjects: BP140 Islamic law (Fiqh); HQ The family. Marriage. Woman; HQ503 The family. Marriage. Home; K670 Family Law; K720 Property Law; KBP Islamic Law; KBP1 Islamic law.Shariah.Fiqh; KBP173.25 Islamic law and other disciplines or subjects; KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning.
• Online Access: http://irep.iium.edu.my/89857/1/360-Article%20Text-825-1-10-20210503.pdf; http://irep.iium.edu.my/89857/; https://jfatwa.usim.edu.my/index.php/jfatwa
• Institution: Universiti Islam Antarabangsa Malaysia

Al-ʿUrf (customary law) is considered among the disputed jurisprudential evidence between the Uṣulī scholar. However, it is not hidden from majority of the scholar that custom has legal impact and that custom is authoritative, besides, it is well-known that custom is one of the major legal maxims according to the Shafiʿīs, and there is no doubt that resorting to custom is based on the realization of public interests and sometimes of a class or sect of society, given its legislative framework and its significant divisions among the fundamentalists.Therefore, under the light of jurisprudential evidence, this research aims for a sound jurisprudential computation of the shared properties between the spouses by examining the term and defining its concept, and does one of the spouse has the right to demand some money when the marriage discontinues, or is it permissible to request in the event of a divorce or death between them with something from the husband’s private gain as a partner in it? If the Sharīʿah does not allow the will in a person’s life by more than a third, which is his money and his dependents’, does it is permissible for the spouse to demand half of the properties upon divorce or death, while half is more than one-third, and for what extend will the damage or loss occur in the half division? By that, this research has followed the descriptive inductive analytical approach to arrive into its findings.