During his lifetime, a father may make a hibah (gift) of his property to one or more of his children, or transfer property into their names in one way or another, for various reasons.
Sometimes the reason is to meet a child’s needs; sometimes it is love and affection; sometimes it is concern for securing the child’s future. At other times, there may be favoritism, family pressure, an intention to deprive an heir, or an attempt to redistribute control over property according to one’s own wishes.
Therefore, the Shariah evaluation cannot be made solely on the basis that “property has been given to a child.” Rather, the reason for giving it, the intention, the timing, the method, and the consequences of the transfer must all be considered.
From this perspective, twelve practical situations involving hibah to children or the transfer of property, together with their Shariah status, are briefly presented below—
1. Giving hibah to a poor or financially struggling child in order to meet a need:
If a child is financially distressed, unemployed, or unable to meet basic necessities of life, the father may give that child money, land, a house, or another form of property as hibah. For example, among three children, one has no home of his own and has a very limited income; the father gives that child a small house or a piece of land.
If the principal purpose of such a hibah is to meet the child’s need and help the child become self-sufficient, it would not be correct to treat it simply as preferential treatment. When the needs of children are not equal, the amount of assistance they receive may also differ because of practical circumstances.
2. Giving additional property to a child who is ill, disabled, or has special needs:
If a child requires greater financial support than the other children because of long-term illness, physical disability, or another special circumstance, the father may give that child additional property. For example, one child requires expensive medical treatment while the other children are healthy and self-sufficient; the father gives the child a piece of land or a significant amount of money to cover the cost of treatment.
If the basis for giving more is the child’s special need, it should not be treated as identical to giving one child more merely because of love, personal preference, or favoritism. Need-based support and preferential hibah may appear similar outwardly, but their purposes and their Shariah evaluation are not the same.
3. Giving property for education, higher education, or the acquisition of skills:
A father may give money or property to a child for higher education, study abroad, professional training, or the acquisition of a particular skill. For example, a child is going abroad for higher education and needs a large amount of money; the father sells a piece of land and gives the proceeds to the child to cover educational expenses.
Such expenditure may often fall under meeting a child’s needs rather than an ordinary gift. However, if education or training is used as a pretext to give one child a very large amount of property while creating clear discrimination against the others, the matter requires a different evaluation.
4. Transferring property for marriage and the establishment of a household:
A father may also give property to meet a child’s needs relating to marriage, housing, or establishing a household. For example, after a daughter’s marriage, she needs a residence of her own, so her father gives her an apartment; or a son plans to start a business after marriage, so the father provides him with some capital.
In such cases, the child’s actual needs, the social circumstances, and the situation of the other children should also be considered. Assistance given for marriage or establishing a household is not the same thing as transferring property for the purpose of altering the structure of inheritance.
5. Giving hibah to establish a livelihood, business, or employment:
To help a child become self-reliant, a father may give business capital, a shop, land, agricultural land, or another productive asset. For example, a child wishes to go into business rather than take a job, and the father gives the child a shop or the capital needed for the business.
If the purpose is to establish the child’s employment and future livelihood, it may be considered in light of the child’s need and welfare. But if business is used as a pretext to give one child a vast amount of property while effectively depriving the others, the question of justice among the children comes to the forefront.
6. Giving one child more because of service to the parents or greater family responsibility:
A child may have lived with the parents for many years, cared for them, remained beside them during illness, or contributed more than the others in carrying family responsibilities. A father may therefore wish to give that child some additional property. For example, among four children, one has looked after the parents for many years; the father therefore gives that child a piece of land.
The first question here is whether the property is truly a hibah, or whether it represents reimbursement, compensation, or remuneration for the child’s actual expenses and responsibilities. It is not appropriate to disregard the rights of the other children and the demands of family justice simply on the argument that “this child served me more.”
7. Giving one child more merely because of love, closeness, or personal preference:
Sometimes a father loves one child more, feels closer to that child, or prefers that child’s temperament and character. He may therefore give that child more property than the others. For example, among three children, the father prefers the youngest son and gives him a valuable piece of land while giving the other children less without any particular reason.
When personal preference rather than need becomes the reason for unequal treatment, the Shariah guidance concerning justice and fairness among children becomes especially relevant.
8. Giving property in order to keep a child loyal, close, or dependent:
Sometimes a father may use property as a means of securing a child’s loyalty or cooperation. For example, because a child lives with him, the father promises to give the child property so that the child will continue to care for him or obey him in the future. At other times, land may be transferred into a child’s name during the father’s lifetime in order to keep that child loyal to him.
Although this may outwardly take the form of hibah, its purpose, any attached conditions, and whether it undermines justice toward the other children must be considered separately.
9. Dividing property during one’s lifetime to prevent future disputes:
A father may fear that disputes over property will arise among his children after his death. He may therefore wish to distribute property among them during his lifetime. For example, he calls his children together, assigns a specified piece of land to each of them, and delivers possession to each child.
This is not a distribution of inheritance; rather, if the necessary conditions of hibah are fulfilled, it is treated as hibah made during one’s lifetime. But making hibah during one’s lifetime does not mean that one may discriminate among children however one wishes; the question of justice toward the children remains important here as well.
10. Transferring property in advance in order to influence the future inheritance structure:
Sometimes a father believes that after his death, under the Shariah-prescribed distribution of inheritance, a particular child will not receive the amount of property he would prefer that child to have. He therefore wishes to give that child additional property during his lifetime. For example, a father believes that his daughter will be financially vulnerable in the future, so he gives her a house while he is alive.
If this is completed as a genuine hibah, its legal ruling is distinct from inheritance. However, if the father’s purpose is to bypass the rules of inheritance and determine succession according to his own preferences, the matter requires much more careful consideration.
11. Giving property as hibah with the intention of depriving an heir:
This is one of the most sensitive situations involving the transfer of property to children.
If a father, during his lifetime, gives away his property in such a way that after his death a particular child or another heir will receive nothing from that property, it is not sufficient to judge the matter merely by the wording of the deed. For example, a father transfers nearly all of his land to one son as hibah and explicitly says, “I want the other children to have no share in this property after my death.”
In such a case, it becomes important to determine whether the hibah was actually completed, whether possession was delivered, whether the father was healthy at the time, and whether the intention was to deprive the heirs.
12. Transferring property during an illness in which death is feared, while excluding other heirs:
When a person suffers from a serious illness in which, ordinarily, the fear of death becomes strong, a transfer of property made in that condition cannot simply be treated in the same way as an ordinary hibah made while healthy. For example, a father becomes seriously ill, gives most of his property to one child while receiving treatment, and dies shortly afterward.
In such a case, the distinctions among marad al-mawt (death-illness), hibah, and wasiyyah (bequest), together with the rights of the other heirs, must all be considered. In particular, when property is given to an heir during an illness in which death is feared, it may not be appropriate simply to apply the ordinary rules of hibah without further qualification.
A review of the situations above shows that the single phrase “giving property to a child” may, from a fiqhi perspective, encompass many acts of entirely different natures.
Some may be ordinary assistance to meet a child’s needs; some may be hibah; some may constitute compensation for expenditure or benefit; some may be decisions concerning property management; and some may amount to a plan to deprive heirs.
Therefore, in determining the Shariah status of any transfer of property, at least five questions need to be considered—
What was given?—Cash, land, a house, a business, or some other property?
Why was it given?—Because of need, love, service, future security, or an intention to deprive someone?
When was it given?—While the giver was healthy, or during an illness in which death was feared?
How was it given?—Was there a genuine hibah with transfer of possession, or was ownership changed only on paper?
What are its consequences?—Does it involve unjust discrimination against other children or an intention to undermine the rights of heirs?
Therefore,
The legal validity of a hibah and the morality or fairness of that hibah should not be treated as the same issue; nor does a transfer of property necessarily become just in the eyes of Shariah merely because it appears outwardly valid.
Especially in the case of hibah among children, the father’s right of ownership must be considered, but so too must justice toward the children, the nature of the hibah, transfer of possession, and the rights of future heirs.