How should ownership of household furnishings (*mataa'*) be determined between a divorcing or deceased husband and wife when both claim full ownership without evidence?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
When a husband and wife dispute ownership of household furnishings without evidence from either party, the ruling follows that which is suitable for men—such as turbans, men's shirts, outer garments, and weapons—is awarded to the man upon his oath. That which is suitable for women—such as their jewelry, shirts, veils, and spindles—is awarded to the woman upon her oath. That which is suitable for both, such as carpets and utensils, is divided equally between them. This applies whether they possessed the items through direct observation or judicial decree, whether the dispute occurs during the marriage or after separation, and whether the dispute is between the couple themselves, or one spouse and the heirs of the other. The established position from Ahmad dictates that for items suitable for men or women, ownership goes to the respective spouse upon oath; items suitable for both are divided. If possession is only established by judicial decree, lots are drawn, and the winner swears and takes the item.
Supporting text
A narration from Al-Jama'ah, including Ya'qub ibn Bukhtan, states that if a man divorces his wife or dies, and the wife claims the property: items for men go to the man, items for women go to the women, and items suitable for both are divided between them. If the property is in the possession of a third party, it goes to whomever proves ownership; otherwise, lots are drawn. Al-Thawri and Ibn Abi Layla agree with this. Al-Qadi limits this division to cases where possession is established by judicial decree; possession established by direct observation grants ownership to the one in possession upon oath. If jointly held by direct observation, they are divided in half, according to Abu Hanifa and Muhammad ibn al-Hasan, though they hold that jointly held property by judicial decree favors the man's oath. If the dispute is between a spouse and the heirs of the other, the word of the party denying ownership is taken, as physical possession is stronger than judicial possession. Abu Yusuf holds that the woman's word is taken for property customary for her dowry. Malik holds that items exclusively for one are his, and shared items belong to the husband because the house belongs to him and his possession is stronger due to his responsibility for housing costs. Al-Shafi'i, Zufar, and Al-Buti hold that everything in the house is divided equally, with each swearing to his half.