التكييف الفقهي للأموال المشتركة بين الزوجين في ضوء الأدلة الاجتهادية

Abstract

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.