Question:
What rights may still be received by a wife who is considered nusyuz? Does a wife’s nusyuz result in her losing her rights to maintenance, joint marital property, and/or inheritance (in the event of her husband’s death)? Can a wife who files for divorce be automatically considered nusyuz?
(Doni, 08821399****)
Answer:
- Before going further into the legal consequences for a wife who is Nusyuz, we need to remind you again about the meaning of “Nusyuz” in Fiqh terminology and its regulations in Islamic Law applicable in Indonesia. “Nusyuz” according to Fiqh is explained by Mustafa Sa‘id al-Khin and Mustafa al-Bugha in their book entitled al-Fiqh al-Manhaji ‘ala Madzhab al-Imam al-Syafi’i (Damasyqus, Dar al-Qalam, 1992), volume IV, page 106, with the following description:
- ونشوز المرأة: عصيانها زوجها، وتعاليها عمّا أوجب الله عليها من طاعته
“A woman’s nusyuz is her act of disobedience shown toward her husband by failing to perform what Allah has obligated upon her, namely obedience to her husband.”
Meanwhile, the meaning of “Nusyuz” in Islamic Law that applies in Indonesia is explained in Article 84 paragraph (1) KHI “A wife can be considered nusyuz if she does not want to carry out the obligations as intended in Article 83 paragraph (1) except for valid reasons” Jo Article 83 KHI “(1) The main obligation for a wife is to be physically and mentally devoted to her husband in a way that is justified by Islamic law-(2) The wife organizes and regulates household needs every day as best as possible.”
(Also read: Wife leaves the shared residence, does Nusyuz qualify?)
- That to answer Mr. Doni’s question, we explain as follows:
- Wife’s Support (Costs for Care, Medical Expenses, and Children’s Education, All Received During the Marriage)
A wife who commits Nusyuz during the marriage is not entitled to support, kiswah (a covering for the wife), and housing, as well as household expenses, care, and medical expenses. This is regulated in Article 80 paragraphs (4) and (7) of the Compilation of Islamic Law. The husband is solely responsible for the costs of care, medical expenses, and education for the children. - Inheritance
Regarding inheritance, based on Article 171 letter c and Article 173 of the Compilation of Islamic Law, it can be concluded that the reasons for preventing someone from becoming an heir are limited to the following conditions:- The heir is no longer Muslim (apostatizes);
- There is a legally binding judge’s decision convicting the heir of murdering, attempting to murder, or seriously assaulting the testator
- Wife’s Support (Costs for Care, Medical Expenses, and Children’s Education, All Received During the Marriage)
Therefore, the wife who is in a state of infidelity remains entitled to the inheritance.
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- Joint Property
Regarding joint property, we quote the following jurisprudence from Religious Court Decision Number 572/Pdt.G/2017/PA.JB in conjunction with High Religious Court Decision 110/Pdt.G/2018/PTA.JK., in which the Panel of Judges concluded that “the Petitioner’s claim lacks sufficient grounds and must therefore be rejected, and the act of a wife’s non-marital separation does not invalidate her rights to property acquired during the marriage.”
Therefore, the wife who is non-marital separation retains the right to joint property.
- Joint Property
- In connection with the question, “Can a wife who sues her husband for divorce be punished as a wife who commits nusyuz?” So, based on SEMA No. 3 of 2018, Chamber of Religions III.A-3, in essence states “The filing of a Divorce Lawsuit by a Wife against Her Husband cannot be automatically qualified as an act of Nusyuz” which is stated as follows: “Accommodating Perma Number 3 of 2017 concerning Guidelines for Adjudicating Women’s Cases in Conflict with the Law, the wife in a lawsuit divorce case can be given mut’ah and iddah maintenance as long as it is not proven to be nusyuz”.It is different for a wife who is given a divorce because of Nusyuz, then she is not entitled to Mutah Support and Iddah Support. This is regulated in Article 149 letters a and b “If the marriage is broken up due to talak, the former husband is obliged to: a. ….. b. provide maintenance, food and kiswah to the former wife during the iddah, unless the former wife has been talak ba’in or nusyuz and is not pregnant” Jo Article 152 KHI “The former wife has the right to receive iddah maintenance from her former husband unless she is Nusyuz”.
This legal opinion is presented with limited initial information that we received. For further details, please make a consultation appointment with our lawyer.
