Originally published: May 17, 2021 -- Updated: September 12, 2023

Update: As described below, an Islamic marriage contract will sometimes be treated as a prenuptial agreement during an Islamic divorce. For Muslim couples who may choose to get divorced, it is important to understand what terms can be included in a prenuptial agreement (prenup). An experienced attorney can help them understand how the terms of mahr may be enforced by an Illinois court during the divorce process.

When a couple chooses to get a divorce, they will need to address multiple types of issues as they legally dissolve their marriage. Property division is one area that can is often disputed since both spouses may want to keep certain items, and they will both be looking to make sure they will have the necessary financial resources to live on their own. Disagreements in this area can become even more contentious if either spouse believes that the other has depleted the marital estate by wasting money or destroying property. This is known as “dissipation of assets,” and in these cases, spouses will need to be sure to understand how Illinois law addresses this issue.

Understanding Asset Dissipation

Dissipation of assets can take a number of forms, but it generally involves the use of marital property for a person’s sole benefit rather than any purposes related to their marriage. For example, a person may be accused of dissipating assets if they had an affair and took money out of a joint bank account to buy gifts for their lover. Dissipation may also involve the destruction of property as an attempt to harm the other spouse, such as by burning their clothes or defacing a painting that had sentimental value. It may also involve any other actions that reduce the value of the marital estate, such as spending marital funds on gambling or illegal drugs.

Proving that dissipation of assets occurred is not always easy, and certain limitations apply to these actions. Courts in Illinois have determined that a person’s actions will only be considered to be dissipation if they took place after the couple’s marriage began to experience an irretrievable breakdown. Illinois law also states that a spouse may only make a claim of dissipation within three years after they discovered or should have known about the other spouse’s actions, and claims may only address dissipation that occurred within five years before a spouse filed a petition for divorce. For example, if one spouse purchased an expensive motorcycle for themselves three years ago, but the couple did not begin experiencing relationship problems until two years ago, this purchase would not be considered dissipation.

The decision to get a divorce is difficult for most married couples, but husbands and wives who practice Islam may be especially hesitant to take this step. The prophet Muhammad has said, “Of all the lawful things, divorce is the most hated by Allah." Because of this, many couples may consider other options before proceeding with an Islamic divorce, including legal separation. By understanding when a legal separation may be beneficial, a couple can make choices about the right solutions for their unique situation.

Legal Separation Before or Instead of an Islamic Divorce

Muslim couples can take multiple approaches during the divorce process. A husband may choose to end his marriage through the talaq process without the consent of his wife. In other cases, a couple may mutually agree to end their marriage through the process of khula. Regardless of the method chosen, a couple is required to complete a waiting period of at least three months (known as the iddah) before their divorce can be finalized under Islamic law.

In addition to following the proper religious laws when ending their marriage, a couple will also need to meet a variety of requirements to dissolve their legal partnership. They may choose to legally separate during the iddah waiting period, and this separation may be extended for a longer amount of time or even indefinitely. This will allow them to live separate lives, but they will remain legally married. Doing so can have several benefits, such as the ability for one spouse to maintain insurance coverage under the other spouse’s policy. If the couple wishes to finalize their split, they will be able to complete the divorce process at any point in the future.

Any couple that chooses to end their marriage will need to address multiple types of complex legal and financial issues. However, during an Islamic divorce, these issues can become even more complicated. In addition to following the divorce laws in the United States, a couple may also need to determine how Sharia law applies in their situation. When addressing issues related to property division, a spouse can make sure their rights and interests will be protected by working with an attorney who is experienced in Islamic divorce cases.

Rights to Property in an Islamic Divorce

Traditionally, Islamic law does not recognize the concept of marital wealth. Married spouses are not required to share their income and assets, but each spouse is entitled to ownership of assets they brought into the marriage. Because of this separation of wealth, some husbands may claim that their wives are not entitled to a share of certain assets during a divorce. However, Islamic law also states that wives are entitled to an equitable divorce and compensation for their contribution to the marriage. 

A couple’s marriage contract may address how property will be divided in the case of divorce. In some cases, the mahr paid by a husband to his wife may address her needs and ensure that she will have the necessary financial resources following divorce. However, in cases where mahr is symbolic or only consists of a low amount, it may not be sufficient to address the wife’s needs fully. Islamic law also recommends that a husband provide a wife with a gift to ensure that she can address her living expenses following divorce. Depending on whether a wife worked during a couple’s marriage or provided other services, such as managing domestic duties to allow the husband to pursue a career, the wife may ask for compensation to address her contributions to the household.

Couples who choose to get divorced will need to address multiple legal and financial issues, including making decisions about the division of marital property. While addressing property ownership will be an important aspect of every divorce, it can become more complicated in high net worth divorce cases, including those where a spouse is a business owner. Family businesses can be an especially complex issue in an Islamic divorce, since the close relationships between family members and business associates may be affected by the end of a couple’s marriage. Spouses will need to be sure their rights and financial interests are protected in the decisions made. Business owners will want to determine how they can protect a family business and ensure that it can continue operating smoothly and successfully during and after their divorce.

Options for Protecting a Family Business

Ideally, business owners will want to take steps to protect their business either before they get married or during their marriage and before divorce becomes a possibility. A prenuptial or postnuptial agreement can protect a business by stating that one spouse will maintain full ownership of the business in the case of divorce, or these agreements can make decisions about how ownership of business interests and other assets will be handled if the couple’s marriage ends.

Those who do not have a prenuptial or postnuptial agreement may need to determine how to divide business interests during their divorce. If the business is a marital asset because it was founded or acquired while a couple was married, the value of the business will need to be divided along with other marital property. A business owned by one spouse before the marriage will usually not be considered marital property, but some business assets may be included in the marital estate if the business increased in value after the couple was married, or a business owner may be required to reimburse their spouse for the contributions they made to a family business.