بسم الله الرحمن الرحيم

Contents

Concept and Basis of Khul` 1

Is Khul` a divorce (talaaq) or dissolution (faskh)? 3

Could Khul` ever be forbidden? 4

Khul` between recommendation and discouragement 6

Can a woman seek a khul` if her husband hit her? 7

What may be offered in a khul`? 7

What does a khul` look like? 8

Miscellaneous Issues of Khul` 9

Is the khul` automatically executed simply by her offer? 10

Once khul` is accepted. 11

The Waiting Period `Iddah of the Mukhtali`ah. 12

The Residence of the ex-Wife. 12

What rights does she have after the khul`? 12

Concept and Basis of Khul`

The word khul` is derived from the 3-letter Arabic root [خ ل ع] which means to remove. If we say [خَلَعَ ثِيابَه] it means “he removed his garb”. Or if I say [خَلَعْتُ الشجرةَ] it means “I removed the tree”.

In Islam, scholarly definitions revolve around it being an end of the marriage when the husband receives a material offering from his wife and using the pronouncement of khul` or talaaq. Or when the husband divorces/releases his wife by accepting her request for separation in exchange for a compensation she offered him.

Some English sources refer to it as a “female-initiated divorce” or they work to find a legal equivalent and may call it a “no fault divorce” or “dissolution” (as opposed to “divorce”) although there are definitely points of dissimilarity between each and what is understood by them in US law.

It is generally regarded as halal and has a basis in the Quran, Sunnah, and consensus of the Ummah. As for the ruling between obligation, recommendation, neutrality, discouraged or forbidden, that would differ from case to case based on the benefits and harms involved.

As for the Quran, then it is Allah’s Words:

{…وَلا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئاً إِلا أَنْ يَخَافَا أَلا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ …(229)} سورة البقرة

“And it is not permitted for you [husbands] to take back what you have given them [your wives] unless they both fear that they cannot uphold the hudood of Allah. So if you all feared they cannot keep up the limits of Allah, then there is not fault upon them with what she ransoms herself with.” [2:229]

And this was first put into practice through what al-Bukhari and others brought to light of the Sunnah here:

عَنْ ابْنِ عَبَّاسٍ رضي الله عنهما أَنَّ امْرَأَةَ ثَابِتِ بْنِ قَيْسٍ أَتَتْ النَّبِيَّ ﷺ فَقَالَتْ : يَا رَسُولَ اللَّهِ ثَابِتُ بْنُ قَيْسٍ مَا أَعْتِبُ عَلَيْهِ فِي خُلُقٍ وَلا دِينٍ ، وَلَكِنِّي أَكْرَهُ الْكُفْرَ فِي الْإِسْلَامِ. فَقَالَ رَسُولُ اللَّهِ ﷺ : (أَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ ؟ قَالَتْ : نَعَمْ . قَالَ رَسُولُ اللَّهِ ﷺ : اقْبَلْ الْحَدِيقَةَ وَطَلِّقْهَا تَطْلِيقَةً)

Ibn `Abbaas told that the wife of Thaabit ibn Qais came to the Prophet ﷺ and she said: O Messenger of Allah, Thaabit ibn Qais, I do not fault him for his character or religiosity, but I hate to be ungrateful (kufr) after Islam. So the Prophet ﷺ said: Would you return to him his garden? She said yes. The Messenger of Allah ﷺ then said “Accept the garden and divorce her a single divorce.”

Thus, the basic concept is that the woman offers to give back the dowry her husband originally gave her in order that he divorce her against his preference.

There are multiple versions of the story of Thaabit’s wife, each narrator adds a detail that other narrators left off. And al-Bukhari’s tradition is often to use a narration that has the main event or lesson of a story without unnecessary or uncertain details. For example, her mentioning that whenever she saw Thaabit among men, he looked the least among them, and also that she offered more than the garden in return, but the Prophet ﷺ negated any increase.

Al-Nasa’i and others recorded this version:

أَخْبَرَنَا مُحَمَّدُ بْنُ سَلَمَةَ، قَالَ أَنْبَأَنَا ابْنُ الْقَاسِمِ، عَنْ مَالِكٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، أَنَّهَا أَخْبَرَتْهُ عَنْ حَبِيبَةَ بِنْتِ سَهْلٍ، أَنَّهَا كَانَتْ تَحْتَ ثَابِتِ بْنِ قَيْسِ بْنِ شَمَّاسٍ وَأَنَّ رَسُولَ اللَّهِ ﷺ خَرَجَ إِلَى الصُّبْحِ فَوَجَدَ حَبِيبَةَ بِنْتَ سَهْلٍ عِنْدَ بَابِهِ فِي الْغَلَسِ فَقَالَ رَسُولُ اللَّهِ ﷺ ‏”‏ مَنْ هَذِهِ ‏”‏ ‏.‏ قَالَتْ أَنَا حَبِيبَةُ بِنْتُ سَهْلٍ يَا رَسُولَ اللَّهِ ‏.‏ قَالَ ‏”‏ مَا شَأْنُكِ ‏”‏ ‏.‏ قَالَتْ لاَ أَنَا وَلاَ ثَابِتُ بْنُ قَيْسٍ ‏.‏ لِزَوْجِهَا فَلَمَّا جَاءَ ثَابِتُ بْنُ قَيْسٍ قَالَ لَهُ رَسُولُ اللَّهِ ﷺ ‏”‏ هَذِهِ حَبِيبَةُ بِنْتُ سَهْلٍ قَدْ ذَكَرَتْ مَا شَاءَ اللَّهُ أَنْ تَذْكُرَ ‏”‏ ‏.‏ فَقَالَتْ حَبِيبَةُ يَا رَسُولَ اللَّهِ كُلُّ مَا أَعْطَانِي عِنْدِي ‏.‏ فَقَالَ رَسُولُ اللَّهِ ﷺ لِثَابِتٍ ‏”‏ خُذْ مِنْهَا ‏”‏ ‏.‏ فَأَخَذَ مِنْهَا وَجَلَسَتْ فِي أَهْلِهَا ‏.

`Amrah bint `Abdur-Rahman told about Habibah bint Sahl, “She was married to Thabit bin Qais bin Shammas. The Messenger of Allah ﷺ went out to pray As-Subh and he found Habibah bint Sahl at his door at the end of the night. The Messenger of Allah ﷺ said: ‘Who is this?‘ She said: ‘I am Habibah bint Sahl, O Messenger of Allah.’ He said: ‘What is the matter?‘ She said: ‘I cannot live with Thabit bin Qais’ -her husband. When Thabit bin Qais came, the Messenger of Allah ﷺ said to him: ‘Here is Habibah bint Sahl and she has said what Allah willed she should say.‘ Habibah said: ‘O Messenger of Allah, everything that he gave me is with me.’ The Messenger of Allah ﷺ said: ‘Take it from her.‘ So he took it from her and she stayed with her family.”

And from Abu Dawud, another important detail:

حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ الرَّحِيمِ الْبَزَّازُ، حَدَّثَنَا عَلِيُّ بْنُ بَحْرٍ الْقَطَّانُ، حَدَّثَنَا هِشَامُ بْنُ يُوسُفَ، عَنْ مَعْمَرٍ، عَنْ عَمْرِو بْنِ مُسْلِمٍ، عَنْ عِكْرِمَةَ، عَنِ ابْنِ عَبَّاسٍ، أَنَّ امْرَأَةَ، ثَابِتِ بْنِ قَيْسٍ اخْتَلَعَتْ مِنْهُ فَجَعَلَ النَّبِيُّ ﷺ عِدَّتَهَا حَيْضَةً ‏.‏ قَالَ أَبُو دَاوُدَ وَهَذَا الْحَدِيثُ رَوَاهُ عَبْدُ الرَّزَّاقِ عَنْ مَعْمَرٍ عَنْ عَمْرِو بْنِ مُسْلِمٍ عَنْ عِكْرِمَةَ عَنِ النَّبِيِّ ﷺ مُرْسَلاً ‏.

Narrated Abdullah ibn Abbas: The wife of Thabit ibn Qays separated herself from him for a compensation. The Prophet ﷺ made her waiting period a since menstrual course.

Another version or another story from al-Nasai goes:

أَخْبَرَنَا أَبُو عَلِيٍّ، مُحَمَّدُ بْنُ يَحْيَى الْمَرْوَزِيُّ قَالَ أَخْبَرَنِي شَاذَانُ بْنُ عُثْمَانَ، أَخُو عَبْدَانَ قَالَ حَدَّثَنَا أَبِي قَالَ، حَدَّثَنَا عَلِيُّ بْنُ الْمُبَارَكِ، عَنْ يَحْيَى بْنِ أَبِي كَثِيرٍ، قَالَ أَخْبَرَنِي مُحَمَّدُ بْنُ عَبْدِ الرَّحْمَنِ، أَنَّ الرُّبَيِّعَ بِنْتَ مُعَوِّذِ ابْنِ عَفْرَاءَ، أَخْبَرَتْهُ أَنَّ ثَابِتَ بْنَ قَيْسِ بْنِ شَمَّاسٍ ضَرَبَ امْرَأَتَهُ فَكَسَرَ يَدَهَا وَهِيَ جَمِيلَةُ بِنْتُ عَبْدِ اللَّهِ بْنِ أُبَىٍّ فَأَتَى أَخُوهَا يَشْتَكِيهِ إِلَى رَسُولِ اللَّهِ ﷺ فَأَرْسَلَ رَسُولُ اللَّهِ ﷺ إِلَى ثَابِتٍ فَقَالَ لَهُ ‏ “‏ خُذِ الَّذِي لَهَا عَلَيْكَ وَخَلِّ سَبِيلَهَا ‏”‏ ‏.‏ قَالَ نَعَمْ ‏.‏ فَأَمَرَهَا رَسُولُ اللَّهِ ﷺ أَنْ تَتَرَبَّصَ حَيْضَةً وَاحِدَةً فَتَلْحَقَ بِأَهْلِهَا ‏.

Ar-Rubayy’ bint Mu’awwidh bin ‘Afra’ narrated that Thabit bin Qais bin Shammas hit his wife and broke her arm –her name was Jamilah bint ‘Abdullah bin Ubayy. Her brother came to the Messenger of Allah to complain about him, and the Messenger of Allah sent for Thabit and said: “Take what she owes you and let her go.” He said: “Yes.” And the Messenger of Allah ordered her to wait for one menstrual cycle and go to her family.

Al-Nasai also related, from the time of Caliph Uthman:

أَخْبَرَنَا عُبَيْدُ اللَّهِ بْنُ سَعْدِ بْنِ إِبْرَاهِيمَ بْنِ سَعْدٍ، قَالَ حَدَّثَنَا عَمِّي، قَالَ حَدَّثَنَا أَبِي، عَنِ ابْنِ إِسْحَاقَ، قَالَ حَدَّثَنِي عُبَادَةُ بْنُ الْوَلِيدِ بْنِ عُبَادَةَ بْنِ الصَّامِتِ، عَنْ رُبَيِّعٍ بِنْتِ مُعَوِّذٍ، قَالَ قُلْتُ لَهَا حَدِّثِينِي حَدِيثَكِ، ‏.‏ قَالَتِ اخْتَلَعْتُ مِنْ زَوْجِي ثُمَّ جِئْتُ عُثْمَانَ فَسَأَلْتُهُ مَاذَا عَلَىَّ مِنَ الْعِدَّةِ فَقَالَ لاَ عِدَّةَ عَلَيْكِ إِلاَّ أَنْ تَكُونِي حَدِيثَةَ عَهْدٍ بِهِ فَتَمْكُثِي حَتَّى تَحِيضِي حَيْضَةً – قَالَ – وَأَنَا مُتَّبِعٌ فِي ذَلِكَ قَضَاءَ رَسُولِ اللَّهِ صلى الله عليه وسلم فِي مَرْيَمَ الْمَغَالِيَّةِ كَانَتْ تَحْتَ ثَابِتِ بْنِ قَيْسِ بْنِ شَمَّاسٍ فَاخْتَلَعَتْ مِنْهُ ‏.

‘Ubadah bin Al-Walid bin ‘Ubadah bin As-Samit narrated from Rubayy’ bint Mu’awwidh. He said: “I said to her: ‘Tell me your Hadith.’ She said: ‘I was separated from husband by Khul’, then I came to ‘Uthman and asked him: What ‘Iddah do I have to observe? He said: You do not have to observe any ‘Iddah, unless you [had intercourse] with him recently, in which case you remain until you have menstruated once. He said: In that I am following the ruling of the Messenger of Allah concerning Mariam Al-Maghaliyyah, who was married to Thabit bin Qais and was separated by Khul’ from him.'”

We’ve seen three different women mentioned in connection with one man. Allah knows best which one(s) experienced this. But to repel any whispers we may get, one final note I’m including is that Thabit ibn Qais ibn Shammaas was known as “khateeb of the Ansar” and even “khateeb of the Messenger of Allah ﷺ” and for speaking on behalf of the Prophet. And the Prophet ﷺ also once praised him saying, “What a blessed man is Thabit ibn Qais ibn Shammaas” in the company of Abu Bakr, Umar, Abu Ubaidah, Usaid, and Muadh. One of the Prophet’s wives, Juwairiyah bint al-Harith al-Mustaliq was briefly in the care of Thaabit before her freedom and marriage to the Prophet were arranged. The Prophet ﷺ also gave him glad tidings of Paradise when he secluded himself, fearful of Quran being revealed against him.

Is Khul` a divorce (talaaq) or dissolution (faskh) or its own thing?

Scholars differed, and based on that, they each reached different conclusions on understanding the consequences, but they agreed on the most important aspects of it. As is our custom, we will explain or allude to the main Sunni opinions to the best of our knowledge, and continuously recommend couples pursue the most conservative or encompassing opinions, to avoid the possibility of falling into difference, except when the evidence of one group is overwhelming, which is rare in issues where the mujtahidun differed.

They disputed based on theory, does the accompaniment of the exchange (dowry in exchange for release from marriage) transfer the separation from the realm of divorce to the realm of faskh? Because if the dowry is returned, as if it never happened, then it is as if an important right of marriage has returned to unfulfillment, and therefore invalidity, and grounds for deeming it a dissolution and faskh?

However, most agreed that if the man uses the words “I divorce you” when accepting the dowry (or other benefit) then a divorce has in fact taken place.

The fruit of the difference (ثَمَرة الخِلاف) is that if it is a dissolution, then it does not count in the “divorce registrar” and the two could remarry and essentially have an unlimited number of khul` and remarriages.

The majority opinion however is that it is a divorce and considered among the metaphorical (ألفاظ الكناية), but certain, forms of divorce. This is the opinion of most schools and imams of the past and has a precedence in each of the Four Schools. And these scholars agree that when khul` takes place, it is a disuniting divorce (طَلْقة بائنة) and not a revocable divorce (طَلْقة رَجْعِيّة).

The qadeem old opinion of al-Shaafi`ee, and the more known opinion of the Hanabilah is that it is a faskh dissolution. In some aspects, khul` more closely resembles a business transaction, rather than a typical divorce. For this reason, ibn Taymiyyah believed that even if a husband said, “You are divorced for $1,000” it is a khul` and faskh but not a divorce. Basically, they believed that any separation made for compensation is a khul and a faskh but not a divorce. Their evidence from the Quran is simply from the context of the ayahs, and assumption that they are telling a linear story. Allah mentions the second divorce, then mentions her ransoming, and then mentions the third divorce which separates the two forever. Ibn Abbaas and whoever followed him said if khul` were a divorce, then the third divorce would have been the fourth here and no one believes in four divorces. And that is the opinion promoted by IslamQA. But is the Quran telling a story here? Allah knows best.

The majority finds that erroneous because faskh is a ruling that the husband does not own, nor could it happen when marital life fulfills all outer conditions of validity and tranquility.

The minority position responds by saying: by accepting money from her in exchange for divorce, it is as if he has undone the marriage, which would have been giving her that same money in exchange for marriage and access. Instead of him giving a thousand for marriage, he’s receiving a thousand for divorce. So it was as if that mahr was in actuality a deposit that is now being returned and the marriage deemed invalid because of it.

Which opinion is right? Difficult to say, and like Ahmad and al-Shafi`i, each of them has two different opinions on the issue, so I’m not publishing my own opinion which I might change later. Also, should these issues truly affect us, we may be at the mercy of our local imams or the Muslim judge who may oversee the case and make pronouncements based on their understanding, not ours. But considering that the majority opinion is held by the largest schools in Islamic Law, you can expect that to be the one enforced, which is the most conservative, unless your judge studied in Saudi Arabia and or follows the Hanabilah and ibn Taymiyyah. And Allah knows best.

Could Khul` ever be forbidden?

The Hanabilah and Hanafiyah, each in their own terms, believe that khul` can be forbidden in certain circumstances. More specifically, accepting the offering from the woman and using that benefit could be forbidden wealth. That is because of the legal maxim “prohibition necessitates invalidity” (النهي يقتضي الفساد). Which prohibition? Allah says:

{… وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ … (19)} سورة النساء

“And do not oppress them so that you could take some of what you have given them, unless they have brought a clear immorality.”

When a husband intentionally makes married life difficult for the wife with the hope that she will bribe him for a divorce, this is called `aḍl.<sup>[1]</sup>Do note that this word is more commonly used to refer to when a wali unjustly preventing his principle from marriage. If a judge is convinced that is the case, the judge may replace her wali. `Aḍl … Continue reading This may look even worse if he is very affluent and she would be homeless without him. But if we agree that it is forbidden, and if a judge determines that the husband pressured her and only acted unjustly to her because he wanted to escape the financial obligations of divorce, then the judge can and should force him to return what she offered him. The Malikiyah have said similar as well. The judge could potentially obligate more, according to what a regular divorce would require of mut`ah parting gift. And this would be in alignment with the maxim:

مَن قصد إلى ما فيه إبطال قصد الشّارع عوقب بنقيض قصده

Whoever works towards that which nullifies the objectives of the Legislator is punished with the opposite of their goal.

Rather, if a man wanted to leave his wife, he should simply pronounce divorce and treat her well in the process and know that Allah will treat him well in difficult and uncertain times as well.

However, if she has changed, and left off some obligations of Islam, or began following prohibitions or displayed ill character to him, it is permissible for him to likewise change his dealings with her. This may include reducing his financial support, being coarse with her in character, admonishing her, abandoning her in bed, and of course, striking her without bruising, if he knows and believes that would not lead to greater harm.

The rest say that the khul` would still be enforced and acceptable, because she did in fact make that offer, and it was accepted, and therefore made on taraaDin “satisfaction” from them both. This author sides with the majority of imams, based on their evidence from the Book of Allah, and sound logical and legal principles. The one guilty of aḍl would be guilty of sin, but that is upon him to repent from, and Allah forgives whom He wills and punishes whom He wills.

Khul` between recommendation and discouragement

Like divorce, a khul` is usually only recommended when it is a last resort. Patience is more virtuous except when both husband and wife would prefer to part ways and there would be no great detriment to any stakeholders. If the wife is only displeased with something the husband has control over, like his religiosity, character, money management, etc., then she could seek to use other methods of persuasion first, including but not limited to professional counseling, and intervention from friends, family and respected community leaders and elders. They could reach compromise and he could seek help for self-improvement. Marriage is, after all, a journey of mutual-improvement.

A khul` may be merited for any of a number of reasons, including but not limited to what the story of Thaabit’s wife indicates of repulsion or disdain of him, which would lead to her depression, inability to keep herself chaste, or fear of ingratitude to Allah, and disrespect of him. Surprisingly, the Prophet ﷺ did not tell her to be patient. Her words indicate that she already estimated that she was on the brink of losing the ability to be patient any longer, and that Allah had not put love and mercy between them. Like most couples, they don’t speak with an imam at the first displeasure, but when they feel they have no other recourse than to admit that they are far from the ideal couple. This might fall under the category of “irreconcilable differences” as the hearts are between the two fingers of Allah, He changes them however He wills. In cases like that, where there is no nushooz (transgression) from either spouse, but both have been religious and respectful, khul` is permissible.

{… فَإِنْ طِبْنَ لَكُمْ عَنْ شَيْءٍ مِنْهُ نَفْسًا فَكُلُوهُ هَنِيئًا مَرِيئًا (4)} سورة النساء

“But if they [wives] would be pleased to give you something from it [the mahr] then take it in satisfaction and ease.”

Scholars generally discourage seeking a khul` if the marriage is otherwise good. Al-Tabarani recorded from the Prophet ﷺ (authenticated by al-Albani):

إن المختلعات هن المنافقات

The khul` seeking women are the hypocrites

The Prophet ﷺ said, as recorded by Abu Dawud from Thawbaan and authenticated by many scholars of hadeeth:

أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلاقًا فِي غَيْرِ مَا بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّة

Any woman who asks her husband for a divorce without any flaw, then forbidden for her is the scent of the Garden.

This hadeeth would especially apply if, for example, a man offered to marry a woman if she separates from her husband. It is forbidden in Islam to propose to a woman who is engaged to another man, so how much worse could it be if she is married to another man? The betrothal is respected, so how about the marriage? And when Iblees meets his minions by his throne on the sea, he crowns the one who ignites hatred between two believers. Especially with marital separation, because that causes added stress, sadness, and pressures, leaving many openings for Shaytan to increase their ingratitude to Allah.

Can a woman seek a khul` if her husband hit her?

Many people have their own breaking point or line that they refuse to let be crossed. For some that would be physical, and for others that might be a second wife. For others still, there may be something else, whether it is from their custom, like a certain sign of disrespect, or pride or from the Sharia and sinful. But even still, some women are patient no matter what and simply hope for the reward of the Hereafter which is greater and everlasting. Even if those are options that the Sharia sometimes allows, they would also be sufficient excuse for a woman to seek khul`.

What may be offered in a khul`?

The default is to offer back the dowry. However, that is not always possible. For example, if the dowry was to pay for college or hajj, you cannot give or destroy your transcripts or nullify your hajj. And so scholars have said instead, the customary dowry of similar women, in value or money. Anything that is permissible to be given as a dowry may be given for khul`. So she may offer any amount of money, even less than the original dowry amount; or offer an object, like a home, a car, or watch. She may also trade a right, like offering to forgo alimony, temporarily or permanently; or offer a service, like the husband may live off of her property for a year, for example, if she owns a house or the house.

This is the opinion of many scholars, including the Shafi` and Maaliki schools. If he does not accept her offer, she may offer more than the original dowry amount to “ransom herself” from his “captivity” as long as that amount is not “obscene” (زيادة فاحشة). If the dowry was $1,000 she may want to offer $5,000 and her family or others may even assist in paying for her khul` if he sets a reasonable price for her to meet. This increase in amount could also be due to a change in their own circumstances compared to how they both were before they married each other. It may be that when they married, $1,000 was all he had to give, but after three or four years, $1,000 became a paltry sum for each. But he cannot set the value to a million dollars if they’re both in average circumstances at best.

However, some scholars forbade increase due to some additional details that appear in more complete versions of the story of Thaabit’s wife. In some, she offers to give him two gardens, and the Prophet ﷺ responds, “as for increase, then no.” And this is also a strong position because it makes us think more meaningfully about the mahr. If the mahr is light and easy, then her ransom is light and easy. If the mahr is large and monumental, then she could be hard-pressed to ransom herself with the like of it without the help of others. A light but valuable mahr is best.

Also, according to some scholars, whom this author agrees with, it is not permissible for the compensation to be unknown or a forbidden object or something impossible.

What does a khul` look like?

The wife may say, for example

اخْلَعْني أو خالِعْني مقابل ألف

“Grant me khul` for a thousand.” If the husband accepts with “so be it” or “yes” or “I accept” or similar, then it is as good as done. She may also say, “grant me release” or any other similar wording or even, “I’ll give you a hundred dollars if you divorce me” or “If you divorce me, I won’t ask you for alimony” or “give me a khul` and I will never ask you for another dollar for the rest of our lives.”

As for how they proceed with the legal side of things, that is up to them, and partially based on what she is offering, whether it is money or if she is forfeiting a right and what her motivation is. If she is forfeiting a right, then they may want to proceed with an inexpensive no-fault divorce, and settle everything out of court.

The khul` may be made during pregnancy or even during a menstrual cycle, which is another factor that separates it from divorce, even if the husband says “okay, for one thousand, you are divorced.”

If the couple, or one of them wish to take the matter to an imam, in case of a dispute, then the imam will ask about why the woman wants separation, and if there is anything that can be done to keep the marriage upheld. If he agrees that she has valid reason to seeking a khul` then he will ask the husband why he is not accepting her offer—whether it is not enough money, or if he simply does not want to part with her, and why. The imam may also ask if the woman feels she was specifically pressured by her husband to offer this ransom, to make sure he did not commit aḍl. If there is proof of that, for example, a witness said they heard the man say, “I’m going to make her life hell, she’ll offer me money to divorce her, then I’ll use that money to marry a different woman!” Then the judge could use that proof to say he doesn’t deserve any of her money, or at least does not deserve the full amount she offered.

Finally, if the imam believes that it is best for the faith of those involved that they be separated, he will order or advise the husband to accept her offer. If the husband refuses on false grounds, the imam may consider declaring the marriage annulled via faskh, especially if the relationship appears abusive.

Miscellaneous Issues of Khul`

Can a woman ransom herself from her husband while she is terminally ill or on her death bed?

In general, yes. But the jurists then determined how much he is allowed to take based on what he could receive from her if she offered a wasiyyah of one third or the customary dowry or the amount he would otherwise stand to inherit. Each school has a different way of looking at it, along with multiple hypotheticals, and their impacts. For example, if she is healed, or for example, she offers a material good worth more than the allowed amount.

If any readers specifically want this author’s judgment in any case under this heading, please contact me with details and I will tell you what the fuqaha have said inshaAllah.

Khul` when a husband has a different ruling

Khul` is also permissible when the husband is sick, mentally unfit, too young to discern, or irresponsible (safeeh) and with frozen assets, disabled, or in slavery. Jurists went into detail regarding when the husband’s own wali is responsible for that and when not.

Can a third party gestor or power of attorney be involved?

In general, yes. If a woman is seen in a miserable condition and a gestor comes and says to the husband, “take 1,000 from me and grant this woman the divorce from you she deserves” for example. This issue is called khul` al-fudooli.

Likewise, a power of attorney, or “wakeel” may act on behalf of both parties, if those parties have given them the general go ahead. The agents can, on behalf of their principals, call for the divorce, decide upon the compensation, give and receive it, each acting for the interests of their own party.

Dispute after the fact?

If the husband claims there was a khul` but the wife denies under sworn testimony, then she is separated from him but owes him nothing. If she claims the husband accepted her offer but he denies, then nothing happens because the default is that there is no khul`.

Is the khul` automatically executed simply by her offer?

Scholars differed. Most scholars believe not, saying that the Prophet’s words to Thabit were in the context of “directing and rectifying” (irshād and iṣlāḥ) but not an obligatory command (الأَمْر يدلّ على الوُجوب). Some disagreed, but they are a minority. We would have learned the truth had Thaabit protested or asked. It seems to me, and Allah knows best, that it could depend on the situation and up to a judge to determine. A judge may consider it obligatory if the woman furnishes proof of the husband’s maladies, and if their remaining together could be harmful for some or all involved. Some scholars considered it an obligation because the simple fact that she asked for a khul` shows that she does not want to be a part of the marriage–for better or worse–and that keeping her in a position she despises would inevitably lead to her ingratitude which could manifest in many ways.

If the judge decrees that the khul` is executable, then the husband’s agreement is not needed, even if his side of the story was not heard if he did not attend the hearing nor even able, as long as the haakim judged based on evidence. Unfortunately in America, imams cannot issue a court summons nor make anything executable or enforced by law. They can only explain what the fiqh rulings are–although depending on the imam you go to, they may take a different approach. Some are cautious and defer to US courts or to licensed arbiters and will only validate and affirm a US court ruling with its Shar`ee equivalent. Other imams may in fact assume the position of a judge, and for any potentially complicated or controversial affairs, call upon other imams in a makeshift council to give more weight to the final decision and reduce liability on any single imam.

When asked about a judge who ruled for khul` while the husband was in another land, Sh Munajjid responded:

نعم يجوز ذلك ، لأن للقاضي سلطة التفريق بين الزوجين إذا تحقق لديه استحالة العشرة الزوجية بشكل مستقيم وأن الزوجة تتضرر من هجران زوجها لها جنسيا واقتصاديا واجتماعيا . والقاضي يقدر الأمر من خلال دراسة كل قضية ومعرفة ملابساتها وظروفها . وغياب الزوج لا يؤثر على إجراءات الفسخ .

“Yes, that is allowed, because the Qadi has the power to separate between two spouses if it is manifest to him the impossibility of a good marital life between them and the wife is harmed from the abandonment of her husband sexually, financially and socially. And the judge determines the verdict based on his study of all issues and knowing her situation. And the absence of the husband does not hinder the processes of annulment.

As for me personally, as an imam with some Sharia training, my approach is varied. My default stance is to abide by the Assembly of Muslim Jurists of America Family Code for masjids in North America. Article 150 specifically reads, “Those in the position of an Islamic judge outside the lands of Islam should not rush to issue the documents for a  khul‘ or legally enforced divorce due to harm before the civil divorce papers are issued, in order to avoid the harm that could be provoked by spiting this angered husband.”

This last expression might raise some eyebrows. “Why are we worried about angering the husband? What about the oppressed wife?” There are a couple responses to that. First of all, if a woman is being abused, call 9-1-1, call the police, seek safety, seek shelter, seek any and all resources available. As for the masjid and imams, the reason masajid are so conservative when it comes to these issues is manifold:

• In Islamic countries, the Islamic sharia judge is probably not the same person leading prayer at the local masjid, or teaching Sunday School to your children or giving Friday khutbah, and also listening to marital issues, or giving “about Islam” talks! If you don’t agree with the judge’s decision, you swallow your pride and go to the masjid. You may never see that judge again the rest of your life and if you ran into him into the grocery store you probably would not realize it. But what if you cannot avoid the judge even when you go to the masjid? Not only that, he teaches your children! And he asks for your donations to support the center and its activities and programs. How is that going to make you feel about participating more in the masjid when the man giving khutbah is the same man who dissolved your marriage against your wishes? You would probably want to avoid that center.
• The Sharia judge in a Muslim country does this day in and day out, they have a tremendous support staff, police and guards that will immediately implement their command and know what to do. The judge may sit on a high “bench” similar to justices in America. It is a feared but respected institution. In the United States, the imam may see divorce issues once every six months, depending on the size of the community. He may be rusty and hesitant, or hasty and forgetful.
• Islamic centers in America in general are subject to lots of scrutiny. When prominent legislators want to use any pretext to surveil Muslims, limit the activities of our centers, and suppress the spread of Islam, remove tax-exempt status, freeze assets, and arrest imams, the institutions that serve our families’ spiritual and religious needs have to be vigilant. This is in addition to Muslims themselves sometimes filing lawsuits against mosques or imams or “cease and desist” orders. Thus, sometimes American masajid and their leadership have to “do less” to be able to “do more”.

Considering those points, also, as other imams and scholars have advised, when one spouse is overseas and the marriage was originally conducted abroad, that they should seek the divorce abroad, as the court’s decision abroad is more enforceable. This has been my consistent stance for “correspondence marriages”.

Once khul` is accepted

Ibnul-Qayyim mentioned in Zaad (5/196) the story of al-Rubayyi` bint Mua`wwidh and her khul` during Uthman‘s time, and when asked whether she physically leaves her home or not, Uthman judged:

كما رواه الليث بن سعد عن نافع مولى ابن عمر أنه سمع الربيع بنت معوذ بن عفراء وهي تخبر عبد الله بن عمر رضي الله عنه أنها اختلعت من زوجها على عهد عثمان بن عفان فجاء عمها إلى عثمان بن عفان فقال له إن ابنة معوذ اختلعت من زوجها اليوم أفتنتقل ؟ فقال عثمان : لتنتقل ولا ميراث بينهما ولا عدة عليها إلا أنها لا تنكح حتى تحيض حيضة خشية أن يكون بها حبل ، فقال عبد الله بن عمر : فعثمان خيرنا وأعلمنا .

وذهب إلى هذا المذهب إسحاق بن راهويه والإمام أحمد في رواية عنه اختارها شيخ الإسلام ابن تيمية .

“She moves and there is no inheritance between the two, nor any waiting period upon her, except that she should not marry or consummate until she has had once cycle out of fear that she might be pregnant.” Abdullah ibn Umar said, “Uthman is the best of us and the most knowledgeable of us.” And Ishaq ibn Rahawih (Ahl Hadeeth) and Ahmad ibn Hanbal took that opinion in a narration that ibn Taymiyyah chose.

Some scholars believed that khul` and divorce require the permission and analysis of a judge. This is due to Allah’s address “if you all fear” [إنْ خِفْتُم] from the various verses where Allah is talking about a couple in the third person. The address is to the Muslim community, and more specifically, those who represent the Muslims in matters of family law: the justices. And that is the practice in America, and indeed, most countries on earth, and it is worth following for legal purposes, while the ceremonial process and consequences of it can take place outside the legal process and courtroom.

The Waiting Period `Iddah of the Mukhtali`ah

The vast majority of scholars from all Four Sunni schools believed the waiting period in this case is no different from a regular divorce. Some of the Hanabilah, and a minority of the salaf including most famously `Uthman ibn `Affaan, considered one cycle to be enough. This is because there is no benefit in her remaining “in limbo” for 3 cycles while he is not waiting to take her back, and because emptiness of the womb is secured by one single cycle. The evidence from the Sunnah are what was authentically reported that the Prophet ﷺ commanded Thaabit’s wife to wait only one cycle [al-Tirmidhi]. The waiting period is prolonged in a revocable divorces simply to give the husband longer time to change his heart.

The Residence of the ex-Wife

As the narration of `Uthman indicates, she moves out if feasible, to her family’s home, a relative, a Muslimah shelter, or the guest bedroom of another family home. If none of that is immediately accessible, then she can stay in her husband’s home, if he is the owner, as is most common, and live as a stranger, in a separate room with separate bathroom, observing hijab in front of him. Unlike divorce, it is forbidden for the husband to “take her back” through intercourse during her waiting period. Once he accepts her offer and signals or makes a pronouncement of separation, then they are haram between each other unless they formally remarry.

Those who say that khul` is a divorce might obligate her to remarry someone else before she can return to her previous husband. But this is a matter of difference of opinion. And when there is difference, there is flexibility. A judge ruling on the issue of khul` might take advantage of that and look at the circumstances. If the marriage ending was particularly bitter or the marriage would very brief, it may be wiser to forbid her from remarrying him until she has been in another marriage. If they have children together, it seems to me, and Allah knows best, that there could be some maslahah in allowing her to return sooner to her previous husband should her heart change after time.

What rights does she have after the khul`?

If she has given back the mahr or another amount she still retains the right for child support and certain custody rights. That is, unless she offered those rights, in whole or partially or temporarily, in exchange for her freedom from her ex-husband.

هذا والله أعلم وصلى الله على نبيه وصحبه وسلم