General law will prevail over fatwa (Pt II): Nuzriah not as a substitute?

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Going through MUIS’ 30-odd pages of deliberation on the fatwa regarding nuzriah and joint-tenancy (where the ownership of a property is shared between two people), I have a sense that the exercise of nuzriah is seemingly recommended only on joint-tenancy properties.

Based on what I read and discussions with some colleagues, the fatwa on nuzriah is presented not as a substitute for the faraidh, but instead as a recommendation specifically on properties which were purchased under joint-tenancy agreements. Basically, this is to avoid disputes on claims of the property when there are still surviving joint-tenants living in the place.

To illustrate:

1. Husband and Wife bought an apartment together as joint tenants.

2. Husband passed away leaving $100,000, and the apartment which costs $400,000. As the Wife owns half of the apartment, the husband’s total estate is the $100,000 cash, and half of the apartment’s value which is $200,000, making it a total of $300,000.

3. Husband also has one brother. According to faraid, the Wife and the Husband’s Brother should split the $300,000 equally, making it $150,000 per person.

4. Now even if the wife gives the Husband’s Brother the $100,000 cash, she still has got to fork out another $50,000. It might be very difficult for her to sell off the apartment and get a new one. Add to that the scenario of the Wife taking care of her parents, or suffering from a disease, or facing other difficulties.

5. As such, the nuzriah is recommended to be exercised on the apartment only, which was bought under joint-tenancy agreement. This is especially useful if the wife and children are still living in the house; one wouldn’t expect them to move out after the father’s death so that it can be sold and divided to other beneficiaries; where would they stay then?

In this sense, I agree that this advantageous approach (of nuzriah) in ensuring the well-being of the immediate beneficiaries (usually the surviving wife and children living in the house), while at the same time allowing the rest of the estate (i.e. the $100,000 cash as in the example above) to be allotted according to the faraidh.

Here’s MUIS’ (ambiguous?) official reply to the matter. As for the deliberation, while from my understanding the MUIS’ paper seemed to incline on limiting the nuzriah for joint-tenancy properties, it stopped short of promoting faraidh for properties purchased otherwise.

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