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Fri 20 DhH 1439 - 31 August 2018

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& - Fiqh of the family » Khul (divorce

 ar fr ur zh es id hi bn pt ge

26247: Khula’: definition and how it

What is khula and what is the correct

procedure? If the husband does not want

to divorce the wife, can the divorce still

happen? What about in societies like

America, where women who don’t like

their husbands (in some case, because

the husbands are religious). The women

think that they have the freedom that if

they don’t like the men, they can divorce

them.

Published Date: 2010-05-08

Praise be to Allaah.

Khula’ means the separation of the wife

in return for a payment; the husband

takes the payment and lets his wife go,

whether this payment is the mahr which

he gave to her, or more or less than

that.

The basic principle concerning this is the

verse in which Allaah says

(interpretation of the meaning):

“And it is not lawful for you (men) to

take back (from your wives) any of your

Mahr (bridal-money given by the

husband to his wife at the time of

marriage) which you have given them,

except when both parties fear that they

would be unable to keep the limits

ordained by Allaah (e.g. to deal with each

other on a fair basis). Then if you fear

that they would not be able to keep the

limits ordained by Allaah, then there is

no sin on either of them if she gives back

(the Mahr or a part of it) for her Al-Khul‘

(divorce)”

[al-Baqarah 2:229]

The evidence for that from the Sunnah is

that the wife of Thaabit ibn Qays ibn

Shammaas (may Allaah be pleased with

him) came to the Prophet (peace and

blessings of Allaah be upon him) and

said, “O Messenger of Allaah, I do not

find any fault with Thaabit ibn Qays in his

character or his religious commitment,

but I do not want to commit any act of

kufr after becoming a Muslim.” The

Prophet (peace and blessings of Allaah

be upon him) said to her, “Will you give

back his garden?” Because he had given

her a garden as her mahr. She said,

“Yes.” The Prophet (peace and blessings

of Allaah be upon him) said to Thaabit:

“Take back your garden, and divorce

her.”

(Narrated by al-Bukhaari, 5273).

From this case the scholars understood

that if a woman cannot stay with her

husband, then the judge should ask him

to divorce her by khula’; indeed he

should order him to do so.

With regard to the way in which it is

done, the husband should take his

payment or they should agree upon it,

then he should say to her “faaraqtuki” (I

separate from you) or “khaala’tuki (I let

you go), or other such words.

Talaaq (i.e., divorce) is the right of the

husband, and does not take place unless

it is done by him, because the Prophet

(peace and blessings of Allaah be upon

him) said: “Talaaq is the right of the one

who seizes the leg (i.e., consummates

the marriage)” i.e., the husband.

(Narrated by Ibn Maajah, 2081; classed

as hasan by al-Albaani in Irwa’ al-

Ghaleel, 2041).

Hence the scholars said that whoever is

forced to divorce his wife by talaaq

wrongfully, and divorces her under

pressure, then his divorce is not valid.

See al-Mughni, 10/352.

With regard to what you mention, that a

woman in your country might arrange

her own divorce through the man-made

laws, if this is for a reason for which it is

permissible to seek a divorce, such as

disliking her husband, not being able to

stay with him or disliking him because of

his immoral ways and indulgence in

haraam actions, etc., there is nothing

wrong with her seeking divorce, but in

this case she should divorce him by

khula’ and return to him the mahr that he

gave to her.

But if she is seeking divorce for no

reason, then that is not permissible and

the court ruling on divorce in this case

does not count for anything in terms of

sharee’ah. The woman still remains the

wife of the man. This gives rise to a new

problem, which is that this woman is

regarded as a divorcee in the eyes of the

(man-made) law, and can re-marry after

her ‘iddah ends, but in fact she is still a

wife and not a divorcee.

Shaykh Muhammad ibn Saalih

al-‘Uthaymeen (may Allaah have mercy

on him) was asked about a similar

matter and said:

Now we have a problem. The fact that

she is still married to him means that she

cannot marry anyone else, but according

to the court ruling she is apparently

divorced from him, and when her ‘iddah

ends she can re-marry. I think that the

only way out of this problem is that good

and righteous people should get involved

in this matter, to bring about

reconciliation between the man and his

wife. Otherwise she has to give him some

payment, so that it will be a proper shar’i

khula’.

Liqa’ al-baab al-Maftooh by Shaykh

Muhammad ibn ‘Uthaymeen, no. 54;

3/174.

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