The Financial Entitlement of the Widow in a case of her Spouse՚s Death before Consummation

Subject Areas : All jurisprudential issues

Aman Alimoradi ¹ , Mohamad Mohseni Dehkalani ²

1 - استادیار گروه فقه و حقوق اسلامی، دانشگاه آزاد اسلامی، تهران، ایران
2 - استادیار گروه فقه و حقوق اسلامی، دانشگاه مازندران، مازندران، ایران

Received: 2014-10-15 Accepted : 2014-10-15 Published : 2008-09-22

Keywords: divorce prior to intercourse, death prior to intercourse, dividing marriage portion in t, dominant view, rare opinion,

Abstract :

According to ImÁmiyya consensus, if a marriage portion set for the wifein a marriage contract and it leads to a separation due to the divorces ofthe spouses before penetration and intercourse, the ex-wife is entitled tohalf of the prescribed marriage portion. Supposing the separation isbecause of the death of the husband, what will happen to the marriageportion? Is the ex-wife entitled to the whole marriage portion determinedin the lifetime of the husband? Or as in the previous case (divorce prior topenetration) the ex-wife is merely entitled to half of the marriage portion?Majority of ImÁmiyya jurisprudents have adopted the first view holdingthat dividing the marriage portion in two halves prior to penetration is aview supported by specific proofs. Extending the same rule to thecircumstances of the death prior to penetration requires further proofs.Therefore, under such circumstances, the ex-wife is entitled to the wholemarriage portion. In contrast, detailed jurisprudential books haveattributed the second view to few jurisprudents including fayd kāshānī.Rereading the issue, authors of the present article have found the secondview supported by certain proofs seeing it more adaptable with the rulesof jurisprudential deduction (ijtihād) after making a comparison betweenthis view and the dominant one.