Dividing assets in practice: indivision and development

Calculating the shares is not the partition: fiqh has regulated the effective passing of assets, from the calculation to the delivery, protecting the value of the estate and the agreement of the heirs.

Partition in kind or by sale

• Divisible assets (cash, securities): direct distribution pro rata of the shares.
• Indivisible assets (single house, shop): three classical ways recorded in the manuals (Mukhtasar Khalil; Mughni al-Muhtaj): the shared usufruct, the occupancy against compensation, or the sale and distribution of the price; the Ottoman Majalla (book 10) imposes the sale when the asset does not divide or when the indivision becomes harmful.
• The house where the family lives: the manuals protect the dwelling of the surviving spouse during the iddah and tend to keep the children in their housing; contemporary practice organizes the right of habitation through compensation.

The operations around the partition

The partition may provide: the sale by an heir of his share to another (lawful at the market price, without arrangement over minors), the donation among heirs after the partition (fiqh blames the voluntary unequal partition but validates it), and the provisional management by an administrator when minors figure among the heirs. For the latter, the Moroccan Moudawana (law No. 70-03, 2004) writes that "the legal representative exercises his guardianship over the person and the assets of the minor" until majority, under the control of the judge: the share of the minor is preserved and made fruitful, never squandered.

Assets without partition value

The mushaf of the deceased, his ring, his sword and his war mount go to the privilege of the family, before any division.rule recorded in the manuals of partition (Mughni al-Muhtaj)

Assets in indivision with non-heirs (partners, co-owners) pass to the succession only in the share of the deceased.

Practical note

The best partition is the one prepared: written inventory, valuation by a third party, mourning period respected, and at every divergence an arbitrator (see the page tahkim). Fiqh leaves the family free hands as long as the shares are respected.