Regarding Paying Debt After Divorce
Question:
Six years ago my (then) husband and I were recruited to go to California to teach in a Muslim school. We had no money for traveling expenses, so with my husband’s permission, I negotiated with a non-Muslim neighbour to purchase his van to make the trip. I paid him $500 and promised to pay the remaining $2000 after we settled in the States. He was very gracious because he knew our circumstances and said, “Don’t worry, pay me when you can.” I told the neighbour I would pay him as soon as we were paid in the new jobs. My husband accepted responsibility for the debt, but the non-Muslim hardly ever saw him and considered the deal to be between himself and me. When we got to California we found that the job was a hoax, and in 1 12 years we were paid $800. Finally my health and then my marriage failed. I returned home with very bad health, and receive disability support from the government, with little likelihood that my financial situation will change. I can’t afford to pay the neighbour who hasn’t heard from me in five years. I’d like to know what my responsibility is in a situation like this. I took the full responsibility on myself when I negotiated the purchase of the van. But I’m told it’s my ex-husband’s responsibility to pay the debts that were incurred during our marriage. Now that I’m unable to pay it, I need to know whether in reality it’s my debt and what I should say or do to the neighbour.
Answer:
You state that the transaction of purchasing the van took place between you and your non-Muslim neighbour with the consent and agreement of your husband, and that your husband took full responsibility of paying for the van.
If that is the case, then Islamically you would be considered a representative or an agent (wakil) on behalf of your husband to carry out the deal, according to the laws of what is known in the Fiqh terminology as Wakalah.
Imam al-Quduri (Allah have mercy on him) states regarding appointing an agent:
“The transactions contracted by agents are of two types: (Firstly), every transaction which the agent or representative (wakil) attributes to himself such as trade and lease transactions. The rights and liabilities of such transactions will be the responsibility of the agent and not the one who appointed him/her. Hence, the agent will be responsible to deliver the goods and take possession of the money (if selling), and the agent will be responsible of paying the money and taking possession of the goods if purchasing. The agent will also be responsible for any defect found in the goods.
(Secondly), every transaction which the agent refers to the one who appointed him/her such as marriage, Khul’a, the rights and liabilities of such transactions will be connected to the one who appointed the agent and not the agent him/herself. Hence, the agent of the husband will not be responsible for paying the dowry neither will the wife’s agent be responsible for making sure that she gives herself to her husband.”(See: al-Lubab fi sharh al-Kitab, 2/67-68)
What the above text is trying to say is that, in contracts and transactions such as marriage, all the responsibility will be on the one who appoints an agent and not the agent or representative himself, because in such contracts the agent cannot refer the contract to himself. An agent of marriage will obviously refer the marriage to the one who appointed him an agent otherwise he will be marrying himself.
Therefore, the responsibility of paying the dowry, the wife giving herself to the husband and other rights will all be the responsibilities of the actual people marrying and not their representatives.
However, in transactions of business, leasing etc, an agent is able to refer the contract to himself and does not need to refer it to the one who appointed him. As such, all the liabilities will be a burden on the agent, for it is he who actually carried out the transaction. Yes, if one pays from one’s own money, one will regain it from the one who appointed one as an agent.
Based on this, you were a representative of your husband in purchasing a van. He asked you to negotiate and carry out the transaction on his behalf and that he held the responsibility of paying for the van.
Now, due to the fact that this neighbour of yours contracted the deal with you, it would be your responsibility of making sure that he is paid, for in matters of business and trade, the agent bears all the responsibilities. However, your ex-husband will be responsible to give you the money back if you pay from your own money, as stated by Imam al-Quduri.
What I suggest is that you discuss this matter with your ex-husband. Explain to him that he accepted the responsibility of the debt and that it is a grave sin to unlawfully consume someone else’s money. Involve other people to whom he may listen and ask them to put pressure on him.
If he still refuses to pay, then it will be your responsibility to contact this neighbour and discuss matters with him, because the deal was negotiated between you and him. Explain your circumstances to him, for he may be willing to reduce the amount or forgive it altogether. If he still demands his full money, you will have to pay him. You may seek the help of family and friends in this regard. If you are eligible to receive Zakat money, then you can avail of it. Thereafter, your ex-husband will be responsible to pay you, otherwise he will be sinful.
May Allah Most High make matters easy for you, Insha Allah.
And Allah knows best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK