Despite the current evolution and urbanization, some people still believe that marriage contract is akin to a proxy that allows husbands to dispose with their wives’ assets however they please, and that the financial liability of both spouses merges, becoming a single entity that does not differentiate between the husband’s and wife’s assets..
On the other hand, based on the prevailing belief mentioned above, society faces numerous contradictions in many cases. These contradictions manifest in the lack of recognition from one party of the marital relationship to acknowledge the contributions of the other party in their wealth growth. This has led to the spread of exploitative marriages. Consequently, jurisprudence and the judiciary have strived to establish principles and rules aimed at curbing this phenomenon in accordance with customs and Islamic jurisprudence.
One of the most important of these principles is known as ” the right of toil and striving ” or ” the right to partnership in hardship “. The first to codify this principle was the Moroccan legislation. Meanwhile, most Arab countries neglected this principle in their legislations. However, it was raised for the first time last year by the Grand Sheikh of Al-Azhar in the Arab Republic of Egypt, Dr. Ahmed El-Tayeb. He emphasized the importance of reviving the fatwa ( religious ruling ) of ” the right of toil and striving ” to safeguard the rights of working women. Consequently, Al-Azhar Global Center for Electronic Fatwas clarified the details and foundations of “ the right of toil and striving ” according to the Islamic law. This was in preparation for codifying in the Egyptian Personal Status Law through the new amendments.
The Concept of ” The Right of Toil and Striving “
Linguistically, “ Toil “ is derived from the verb “ hard work “, which means exerting oneself in work and seeking sustenance. ” Striving “ originates from the verb ” Seek “, and the connotation of the terms ” Toil “ and ” Striving “ linguistically revolves around the meanings of exerting effort in acquiring and producing
In terminology, some define it as a personal right based on the contribution of partners within an established partnership framework, focusing on enhancing or forming family wealth. This is in exchange for them deserving a portion of the benefits proportional to their contributions when division occurs, in accordance with local customs and rules.
The Rooting of the Principle of ” The Right of Toil and Striving in Islamic law “
The historical roots of “ The Right of Toil and Striving ” fatwa trace back to protestation of woman during the era of Caliph Umar ibn Al-Khattab, the second of the Rightly-Guided Caliphs. Specifically, it occurred in the 7th century CE and the first century AH ( Islamic calendar ), when a woman called Habibah bint Zurrig, presented her case to Omar ibn Al-Khattab. She was the wife of Amr ibn Al-Harith, and she used to work as a tailor, making garments and turbans, meanwhile her husband was a merchant who displayed her works for sale and trade in them.
After her husband’s death, a dispute arose over her rights, as he left behind lands, houses, and money. The heirs took the keys of the storehouses to divide the inheritance among them. Habibah confronted them, claiming that these assets originally belonged to her due to her toil and striving alongside her husband during his lifetime
Habibah bint Zurrig took her case to Omar ibn Al-Khattab, and the Caliph mediated between her and her husband’s heirs. The Caliph awarded her half of the total assets as a reward for her toil and striving, in addition to her legitimate quarter share of the other half, as her rightful portion of her husband’s inheritance, since she did not bear any children from him.
This approach was followed by all Islamic jurisprudential schools, especially the Maliki and Hanafi schools. Scholars from the Maliki school worked on rooting the Right of Toil and Striving, also known as the right to partnership in hardship. Anas and his followers unanimously agreed that every woman worked with her husband on a craft or any other kind or support, such as weaving, spinning, and others, is a partner in her husband’s wealth.
Furthermore, the principle of ” the Right of Toil and Striving “ is not limited to just wives; it also includes children and relatives who have contributed to the development and investment of assets of the inheritance of any family member voluntarily and without a predetermined share or known fee. Therefore, they have the right to receive their share of the wealth when they demand it, in proportion to their contribution.
Legalizing Right of Toil and Striving in the UAE
The Moroccan legislature was the first to codify this right, followed by other Arab countries in a relatively short period. It was circulated and legalized by many other nations, including the United Arab Emirates. The purpose of this principle’s legalization is to preserve the rights of both spouses, and it specifies the timing of entitlement upon one of two occasions; divorce or death.
Article (62) of Personal Status Law No. 28 of 2005 in the UAE stipulates an exception to the rule of each spouse’s independent financial liability. It states that ” a mature woman is free to manage her money, and the husband may not manage her funds without her consent, as
each of them has an independent financial liability. In case of one of them participates with the other in making money, building a house, or the like, he is entitled to his share in it upon divorce or death “.
The explanatory memorandum of the Personal Status Law clarifies that ” a woman has an independent financial liability. Hence, a mature woman is free to manage her assets, according to the majority of jurists, contrary to the Maliki school. For this reason, the law prevents the husband from managing her assets without her consent, as that would involve dealing with another person’s money, not an independent financial liability of the woman. This is because her financial responsibility is separate from his. In marriage, there is no joint financial liability between the husband and his wife … This article introduced a new provision that establishes the right of each spouse to claim their share from the other upon divorce or death if one of them participated with the other in a trade or construction of a house, or similar matters. This provision aligns with the Maliki school “.
Examples from Practical Reality
By applying this principle in real-life cases, we find that there are numerous situations and cases, which our office has handled that required the application of the ” the Right of Toil and Striving ” principle, in order to ensure that everyone entitled receives their rightful share.
This principle aims to preserve the rights of both spouses and the independence of civil liability of them, away from the marital relationship. This right is not limited to just wives; its application includes to the husband as well.
Here, we can present one of the ongoing lawsuits in Dubai courts, which mirrors these circumstances : –
To summarize it, the plaintiff is a citizen of the United Arab Emirates who married the defendant, who is a national of one of the Gulf countries. While their marital union, the plaintiff applied for a housing loan from a housing institution to build a house. The loan was to be repaid according to a favorable installment program for citizens of the country, divided into an initial payment and subsequent installments. Due to the fact that the couple lived together, the husband contributed with an amount of the initial payment. However, disputes and conflicts arose between them, leading to the termination of their relationship through divorce. Following the divorce, they entered into a reconciliation agreement, in which the plaintiff acknowledged the defendant’s right to jointly own the house, based on the amount he contributed. Since the defendant was not a citizen of the UAE, registering half of the house in his name proved to be problematic. Nevertheless, they agreed to co-occupy the house, with the defendant residing in his designated half. However, the execution of this agreement became impractical, and the plaintiff found it difficult to refund the amount initially paid by her ex-husband.
Due to the defendant’s right in the amount he paid, in the event that the agreement reached between him and his ex-wife couldn’t be executed, which would have allowed him to remain in the other half of the house after the plaintiff’s remarriage and her new husband’s residence in the same house, the court ruling in the aforementioned case compelled the plaintiff to reimburse the defendant the amount he paid based on Article ( 62 ) of Personal Status Law No. 28 of 2005. This article serves as legislation for the ” The Right of Toil and Striving “ principle.
In conclusion, the legal concept of the ” The Right of Toil and Striving “ principle confirms the independence of the financial liabilities of spouses. However, it permits and empowers both of them to acquire or divide what they contributed in, either financially or through effort, in building and enhancing wealth, whether by working together without compensation or contributing their personal assets.
As evident from the foregoing, the UAE legislator encompassed the scenarios where one spouse contributes or enhances the other’s wealth within the framework of governing rules for civil transactions, the same way as transactions between non-spouses.
From the same perspective, the application of the above principle is subject to what is stated in the first paragraph of Article 1 of the Federal Evidence Law No. 35 of 2022, which dictates that ” the claimant shall prove their claimed right, and the respondent shall deny it “. Consequently, whenever either spouse is willing to claim their right based on this principle, they are obliged to provide evidence of everything they contributed to the other party’s wealth, whether financially or through effort, in order to prove their legal right for claiming those rights.
Prepared by Ms. Nourhan Ahmed Fathy