Child maintenance: rates, duration and claims

1What you will learn

The Maintenance rate page answers how the rate is assessed, claimed and enforced; Hadhanah & lineage answers who has custody of the child. This page answers the other question: what is owed to a child, until when, and what happens when the father's circumstances change.

After this lesson, you should be able to:

1. Naming the five things that Act 303 s.72(1) names as the content of child maintenance.
2. Explaining why child maintenance does not lapse with divorce, with the mother's remarriage, or because the mother works.
3. Stating the duration of maintenance for sons and daughters according to the prevailing opinion of the schools, and distinguishing it from the duration of the order under s.79.
4. Knowing the standing of the child's own property, how to claim, and why a parents' agreement does not end the child's right.

2The child's right, not the mother's — and it does not lapse

"And upon the father is the mothers' provision and clothing in a fitting manner" (Surah al-Baqarah 2:233). After mentioning divorce and ʿIddah, Allah still commands: "And if they suckle (the child) for you, then give them their payment" (65:6), and "Let the one of means spend according to his means" (65:7).

Hind bint 'Utbah complained that Abu Sufyan was stingy and did not give her what was sufficient for her and her children. The Prophet ﷺ said: "Take what is sufficient for you and your child in a fitting manner" (Sahih al-Bukhari 5364; Sahih Muslim, the book of al-Aqdiyah; Sunan an-Nasa'i 5420 — sahih; Sunan Ibn Majah 2293 — sahih). The measure is sufficiency that is ma'ruf; child maintenance is mentioned together with the wife's maintenance but is separate from it; and stinginess is no excuse — he gave Hind a way out, not merely the advice to be patient. Compare also Sahih al-Bukhari 5188 (each of you is a shepherd and responsible for his flock) and Sahih al-Bukhari 55 (spending on one's family becomes a charity).

Act 303 s.72(1): except where there is an agreement or a court order providing otherwise, it is the duty of a man to maintain his children, whether they are in his custody or in the custody of another. That last phrase closes the four most commonly heard arguments:

• "We have divorced." Divorce severs the marriage, not fatherhood.
• "Her mother has remarried." The mother's remarriage may touch hadhanah (s.83(a)), not the father's maintenance. If the new husband accepts the child as a member of his family, s.78 places an obligation on him to the extent that the child's parents fail, and what he spends may be reclaimed from the father or mother (s.78(3)).
• "Her mother works." The rate is assessed on means and need (s.61); the mother's income is no substitute for the father's obligation.
• "She stops me seeing the child." The right of access and maintenance are two separate matters; both are dealt with through the court, not through retaliation.

3What is included — and what lies outside it

Act 303 s.72(1) names five things and sets their measure: accommodation, clothing, food, medical treatment and education that is reasonable, having regard to the means and station in life of the father — whether provided himself or its cost paid.

4Until when: sons, daughters, children with disabilities and children still studying

Act 303 s.79 on the duration of the order: except where the order is expressed to be for a shorter period, or has been rescinded, or is made in favour of (i) a daughter who is unmarried or who is unable to maintain herself because of some mental or physical disability, or (ii) a son who is unable to maintain himself because of some mental or physical disability — the order expires when the child attains the age of eighteen years. The court may, on the application of the child or another person, extend it for the period it thinks reasonable to enable the child to pursue further or higher education or training.

Three things that must be precise: the age of 18 is the duration of the order, not a fatwa on when the Shariah obligation ends; the extension for higher education is not automatic and requires an application, which may be made by the child himself; and the exceptions (c)(i) and (c)(ii) are not symmetrical — for a daughter, being unmarried is enough, whereas for a son the exception is mentioned only because of a disability.

Juristic difference — the prevailing opinion; within each school there are other views, and this difference is not resolved here:

5A child who has property of his own

Is the father's obligation lifted because the child has property of his own? The majority opinion ties child maintenance to the child's inability: it is obligatory for a child who has no property, and when the child has property of his own, his expenses are taken from that property. Some jurists tie it to lineage and the father's capacity, and so retain the father's obligation as long as he is able and do not allow the child's property to be exhausted. This difference is not resolved here. What is agreed: the child's property is not the father's property.

Who holds and spends it? Here Act 303 is clear:

• s.88 — even where the right of hadhanah rests with another, the father is the first and primary natural guardian of the person and property of his minor child; when he dies, guardianship passes in the order set out in that section, beginning with the paternal grandfather, provided that person is a Muslim, adult, of sound mind and trustworthy. s.88(4): a minor until the age of 18 years.
• s.89 — the guardian has no power to sell the immovable property of the child except in the circumstances specifically listed (among them where the child has no other means of subsistence and the sale is genuinely necessary for his maintenance), and for movable property where the child has a pressing need such as food, clothing and treatment.
• s.98 — a guardian of property appointed by the court may provide out of the income of the property for the child's maintenance and education; but no sum exceeding three hundred ringgit a month may be so used without the court's permission (s.98(1)) — that figure is in the Act itself, and the state enactment may state a different figure or condition. s.98(2) allows provision out of capital by order of the court.
• s.99 — for a small property, the court may order the whole of the child's property to be placed in the hands of a person it appoints, to be spent for the child's maintenance, education or advancement, and that person may be ordered to render an account.

6Maintenance while the child is in the mother's hadhanah

• The obligation does not move with the child. s.72(1) mentions the father's obligation whether the child is in his custody or in another's custody. The mother who has custody does not become the one liable because she has custody.
• To whom payment is made. s.73(3) — the order may direct payment to the person having custody or control and care of the child, or to a trustee for the child. Payment to the mother is not "money for the mother"; it is the child's maintenance channelled through his custodian.
• The mother's remarriage may touch her right of hadhanah (s.83(a), and that right returns if the marriage is dissolved) — not a reason to reduce the father's maintenance.
• A mother who spends her own money because the father does not pay: the jurists differ over past maintenance never ordered by a judge — the prevailing Shafi'i and Hanbali opinion treats it as a debt not extinguished by the passage of time, whereas the prevailing Hanafi opinion recognises it only where there is a judge's order or a prior agreement. The practical conclusion: do not wait, and keep the receipts.
• Custody and maintenance are not an exchange. Variation of a custody or child-maintenance order is applied for under s.75, by any interested person, where the order was based on a misrepresentation or mistake of fact, or where there has been a material change of circumstances.

7When the father is absent: missing, imprisoned, out of work or abroad

The father's circumstances change; the child's right does not. What changes is to whom the claim is made and how it is enforced.

8Claiming at the Syariah Court: grounds and evidence

A child-maintenance claim may be brought as a claim of its own, not only as a consequence of a divorce case. The grounds in s.73(1): the father refuses or neglects to make reasonable provision (a); the father has abandoned his wife and the child is in her care (b); during matrimonial proceedings (c); upon making or after making an order placing the child in another's custody (d); and when permitting a father to practise polygyny (e). Variation may be applied for by any interested person (s.75); an extension for education may be applied for by the child himself (s.79).

Evidence specific to a child's claim — in addition to the evidence of income and need at The maintenance rate: the birth certificate of each child and related orders if lineage was ever disputed; prior custody orders and maintenance orders; education costs (fee receipts, book lists, institutional offer letters, transport and accommodation — the basis of an s.79 extension application); medical costs (reports, receipts, recurring costs, assistive devices — stated separately for a child with a disability); records of payments received (date, amount, channel, for which month); and each child's expenses separately, not a single lump sum, because the court assesses need and need differs between children.

If there is property that can be secured, s.74(1) allows the court to order maintenance to be secured by vesting property in a trustee; failure to comply may be punished as contempt of court (s.74(2)).

9Arrears of child maintenance

Act 303 s.77 is a single sentence: s.69 applies, mutatis mutandis and in accordance with Hukum Syarak, to an order for the payment of maintenance for the benefit of a child. So arrears of child maintenance may be claimed as a debt; if accrued before a receiving order is made against the father it may be proved in his bankruptcy; if accrued before his death it becomes a debt from his estate — settled before the faraid distribution; and arrears accrued before the death of the person entitled may be claimed by that person's lawful personal representative (s.69(2)).

Three conclusions: the order lapses, the arrears do not — the sum already accrued before the child attains 18 remains a debt; silence is not a release — what is lost through delay is the evidence, not the right; and poverty is no eraser — a father who is unable should apply to vary under s.75, because arrears that accumulate while he stays silent remain a debt.

10An agreement between the parents: what it is worth, and what its limit is

• The Act recognises it. s.72(1) begins with "except where an agreement or a court order provides otherwise", and s.106(1)(c) mentions maintenance payable under any agreement for the benefit of a child.
• But it does not bind the court. s.76 — the court may at any time vary the terms of any agreement concerning the custody or maintenance of a child, notwithstanding any provision to the contrary in that agreement, where it is reasonable and for the child's welfare. A "full and final" clause does not bar s.76.
• That right is not the mother's to waive. The majority of jurists state that maintenance is the child's right; a mother who waives it waives something that is not hers. In the Act too, s.76 and s.79 give the right to apply to the child and to an interested person.
• Do not equate it with a lump-sum settlement. s.63 provides that an agreement to pay a capital sum in settlement of all future maintenance claims does not take effect until approved by the court — but s.63 sits among the provisions on a wife's maintenance, and how far it applies to an agreement concerning a child should be put to a Syarie lawyer (to be verified). For a child, the clear provision is s.76.

The safe way: (1) write it down — the amount, the date, the channel, who pays what, and when it is reviewed; (2) record it as an order through sulh at the Syariah Court, because an agreement that becomes an order is enforceable whereas an agreement in a phone is not; (3) review it when circumstances change, through s.75 or s.76, not by stopping payment.

11The six misunderstandings that harm the child most

Each one has at some point caused a child to lose something that was indeed his right.

12In practice: the child-maintenance file

One file, whether you pay or receive. Fill in what you have today, and add the rest this week.

• ☐ The birth certificate of each child, and any existing court orders: custody, maintenance, variation.
• ☐ A list of expenses for each child separately, per month, with receipts.
• ☐ Payment records: date, amount, channel, for which month — including cash.
• ☐ Education documents: fees, offer letters, transport, accommodation.
• ☐ Medical documents: reports, receipts, recurring costs, assistive devices.
• ☐ A written agreement between the parents, and the steps to record it as an order.
• ☐ A record of the child's property: its source, where it is kept, who its guardian is.
• ☐ The date the child reaches 18 years — marked early so that the s.79 application is not missed.
• ☐ A copy of the relevant sections from your state enactment, not only Act 303.

13Test yourself

Try to answer first before reading the answer.

Sources & references