Unpaid Dowry (mahr) at the Time of Divorce

Marriage payment or dowry (mahr) is a right of the wife and must be paid to her. It is a means by which the husband honours her and shows gratitude to Allah Almighty first, and then to the wife for accepting to enter into his marriage. It is one of the fundamental aspects of marriage.

The husband is obliged to pay the bride her Mahr. Allah Most High says:

“Give them (women) their dowers.” (Surah al-Nisa, 24)

And:

“And give the women (on marriage) their dower as a free gift.” (al-Nisa, 4)

In the case where the man divorces his wife, in principle, there are two situations:

1) The Mahr was stipulated in the marriage contract,

2) The Mahr was not fixed or stipulated at the time of contracting the marriage.

In the first situation, where the Mahr was stipulated, there are two possibilities:

a) Divorce was pronounced prior to actual sexual intercourse or/and before the wife and husband being alone in a way that there was no physical or religious (shar’i) prevention from engaging in sexual intercourse (khalwa al-sahiha).

The ruling in this situation is that the husband will only be obliged to pay half of the stipulated Mahr. Allah Most High says:

“And if you divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (is due to them), unless they remit it.” (al-Baqarah, 237)

b) Divorce occurred after sexual intercourse or/and after remaining alone (in the manner explained above).

The ruling here is that the husband will be responsible to pay the wife full Mahr that was stipulated at the time of contracting the marriage.

With regards to the second situation, (where the Mahr was not fixed at the time of marriage), we have the same two possibilities here also:

a) In the case of divorce occurring before sexual intercourse or being alone, the husband will be excused from paying any Mahr, but he must give her an amenity payment known as Mut’a or a gift. Allah Most High says:

“There is no blame on you if you divorce women before consummation or the fixation of their dower, but bestow on them (a suitable gift), the wealthy according to his means and the poor according to his means. A gift of reasonable amount is due from those who wish to do the right thing.” (al-Baqarah, 236)

b) When divorce occurs after sexual intercourse or being alone, the husband will have to pay the amount typically received as marriage payment by similar brides (mahr al-mithl).

From the above explanation, it becomes evident that there are two things that make the payment of Mahr necessary (wajib) on the husband. One is sexual intercourse, meaning consummation of marriage, and the other, the spouses being alone (khalwa al-sahiha).

The meaning of Khalwa al-Sahiha is that the spouses after marriage were alone in a way that they was no fear of a third person entering on them (i.e. the doors were locked), and there was no physical prevention from engaging in sexual intercourse, such as the husband being impotent or too young to engage in intercourse, or the wife’s vagina being closed or nearly so because of abnormal growth of flesh or bone. Similarly, there was no legal (from the shariah perspective) prevention from sex, such as one or both of them were fasting in the month of Ramadhan, or the wife was in her menstruation (haidh) or post natal bleeding (nifas). (See: al-Mawsili, al-Ikhtiyar, li ta’lil al-mukhtar, 3/128).

Therefore, if the sister in question was ever alone with her husband in the manner explained above, meaning there was no possibility of any third person entering on them, and none of the preventions for intercourse were present, then she will be entitled to full Mahr (if stipulated at the time of marriage) or the amount that is typically received as Mahr by similar brides (if Mahr was not stipulated).

It has been mentioned in the question that the spouses were intimate, which indicates that they remained alone together in the above manner, thus making the full Mahr Wajib on the husband.

Now, if the sister can no longer remain in the marriage due to reasons outlined in the question, then it would be best to convince the husband to divorce her. If he refuses, they can opt for a Khul’.

Khul’ is when the husband agrees to divorce his wife for a financial compensation. This compensation could be anything on which both parties agree. The wife may also opt to forgive the husband the dowry or some part of it.

Therefore, if the husband is unwilling to divorce her due to the Mahr, then both of them should come to an agreement and compromise on an amount which he is willing to accept in return for a divorce. If he is unwilling to pay any amount from the Mahr, then the only solution for the wife would be to forgive him the full dowry in order to receive the divorce. This temporary (financial) setback may be beneficial in the long term.

And Allah Knows Best