Question 85 : Assalamualaikum sheikh. I am from Griffith, Nathan.
I have one thing to be clear from you.
For example, A has husband, only one daughter, no son. A has also brothers and sisters. A’s daughter is married and has sons and daughter as well.
A has some valuable land properties that are actually acquired by her husband and registered in A’s name. Now A is critically ill and in hospital for last three months.
As we know as per shariah law, after A died, her husband will get one-sixth and her daughter will get one-half. The remaining properties will go to A’s brothers and sisters.
Now, A wants to transfer her all properties to her husband or daughter by heba or gift or will.
The important point is that A’s husband also wants to transfer properties to his name. Husband has actually acquired all this properties in his life time.
Sheikh, what should be the Islamic solution?
Please advise me.
Answer : Walaikumussalam Br Mohammad,
According to the teachings of Islam, a husband and wife each has ownership of what they actually earned themselves from their jobs and paid for. Neither has ownership of what the other paid for from money they aquired be it from earning or their relatives’ inheritance. It is a customary practice with many people where we live to write the property in their less risk job or non working spouse name so as to protect it from litigation in case it occurs. The reality of this is merely for lotigation related local law but it does not really change the real ownership according to Islamic teachings unless of the one who worked and paid for those properties actually (1) gave it’s ownership (2) intending to do so. That is customarily not the case. It is unfortunately a practice for people to consider a spouse’s earnt and aquired property to be jointly owned by both spouses whereas in Islam that is not the way it is recognized – ownership belonging to the one who purchased it with their wealth and only transfered wholly or partially to a spouse if it was genuinely given with informed consent and will.
So my understanding in this case that you mentioned is, and I may be mistaken, that the wife – A – does not really own the assets as her husband put them in her name for litigation prevention type of purpose as is customarily the case. Hence, the assets belong to the husband – those assets that he paid from his aquired wealth as opposed to ones she paid from her aquired wealth.
So the properties ought to be considered as inheritance when the husband dies to his inheritors. How they go about having the properties titled to their real owner from whose aquired wealth they were bought is a matter best discussed with a lawyer qualified in the local law as it concerns the local law and its enforcement. From a religious persoective, the ownership really belongs as described above. Therefore, religiously there is no need to for A to do hibah (gifting/bestowing) the asset to A’s husband as the husband still owns it from religious perspective. What remains for them to do now is how a lawyer advises to deal with the matter.
What I wrote above is what I have learned and understood from the Quran, Sunnah and what the great Scholars of Fiqh have said from what I read, and of course understood. I may be mistaken. Others may have another opinion. Thus the questioner is advised to ask as many other qualified people also about the religious aspect besides asking the lawyers about local law aspects.
And Allah knows best.