A1. Khula is the ending of the marriage (Nikah) whereby the husband consents to the request of the wife to release her from the marriage contract in return for the dowry or some other remuneration to be given to the husband. A khula once issued, counts as one irrevocable divorce (Talaq Ba’in).
Khula` comes from the Arabic kh-la-`a which is used in Arabic for taking off clothes normally. The reason the Sharia has used this word for this kind of Talaq is because the Holy Qur’an has referred to the intimate and close nature of the relationship between the husband and wife by referring to each one as being clothes of the other partner:
هُنَّ لِبَاسٌ لَّكُمْ وَأَنْتُمْ لِبَاسٌ لَّهُنّ
“Your wives are garments for you and you are garments for them.”
By using Khula` to end the Nikah one is removing this garment from oneself. Some people today have seriously misunderstood the concept of Khula` and think a Muslim judge or a Sharia council can issue “Khulas” without the consent of the husband. This is will not be Khula according to Islam. As Mufti Taqi Uthmani writes:
“To the extent we have researched, approximately all the great Jurists (Fuqahaa Mujtahidun) are agreed, and the evidences of the Qur’an and Sunna support this, that Khula is a mutually agreed transaction between the two sides.” (p.12 in Islam Me Khula Ki Haqiqat)
The following are some of the texts of the classical Muslim jurists on Khula:
The great Hanafi jurist Imam Sarkhasi writes:
“Khula`is permitted by the ruler and other than the ruler because it is a transaction that is entirely based upon mutual agreement.” (Al-Mabsut,vol. 6 p. 173, Matbaa` al-Sa`aadah)
The scholar Allaamah Abu al-Waleed al-Baaji in his commentary on the Muwatta of Imam Malik:
“The wife will have to return to him if the husband does not want her separation through Khula` or by some other way.” (Al-Muntaqaa, vol. 7 p.61, Matbaa` al-Sa`aadah)
The great Imam and founder of the school that goes by his name, Imam Shafi writes in Kitab al-Umm:
“…the reason is that Khula` is in the ruling of Talaq. Thus no one has the right to divorce on behalf of someone else. This right is not gained by the father, the master, the guardian and not even the ruler.” (Kitab al-Umm, vol. 5 p. 200, Maktaba al-Kulliyat al-Azhariyya)
The great authority in the Hanbali school Imam Ibn Qudaama states:
“For Khula` is a transaction, thus the absence of the need of the ruler, just as in sale transactions (Bay`) and the marriage contract (Nikah) and because it stands for the ending of a (marriage) contract by mutual agreement. For this reason it resembles the mutually agreed cancellation of a sale contract (Iqalaah).” (Al-Mughni, vol. 7 p. 52, Dar al-Manaar)
This view is also the position of Imam Ibn Taymiyya and his famous student ibn al-Qayyim al-Jawziyya. The latter writes in his work Zad al-Ma`aad:
“That the Messenger of Allah ﷺ termed Khula to be fidya (an amount given in exchange for something) is proof that it has the meaning of a transaction and it is for this reason that the agreement of both the husband and wife has been made a condition in it.” (Zad al-Ma`aad, vol. 2 p.238)
A2. No. Khula` according to all schools of Islamic law can only be obtained by the woman with the consent of her husband (also see Q1). However, the marriage may be dissolved by Faskh of Nikah which can be decreed by the FCB even if the husband does not consent, subject to the requisite sharia conditions for a Faskh of Nikah being fully met.
Please also see Q3 & Q4
A3. Faskh or Faskh of Nikah means the dissolving of a marriage contract by the decree of the Muslim judge or an Islamic Council where sufficient grounds for the decree exist according to Islamic Law.
A4. Islam has given a woman the right to seek the dissolution (Faskh) of her Nikah for certain specific reasons as outlined in the books of jurisprudence.
It would be necessary to seek consultation of an experienced and qualified scholar to be able to assess whether such a reason exists in the particular circumstances of any given case.
A5. It depends upon the exact circumstances of the case and will require the FCB to examine the details of how the civil divorce was obtained.
It should be noted that there are a number of differing scenarios in which despite a Decree Absolute being issued by a civil court, the Nikah itself remains intact in sharia law. In such a situation it would be impermissible and haram for a woman to marry again until the previous marriage has been dissolved according to the Sharia.
A6. It should be clear that a Sharia Council or Muslim judge (Qadhi) does NOT have the legal capacity to decree a Faskh of Nikah where the Sharia’s defined grounds for Faskh are not present. Any Nikah thus dissolved will remain intact and any new Nikah will be counted as Zina. A wife who does not have Sharia grounds for Faskh, but still wishes to separate from her husband, may seek Talaq or Khula.
A7. Those who seek the FCB's services in relation to seeking the dissolution of a Nikah will need to fill in the application form from the website and seek an appointment for its submission.
A8. No. However, it is recommended in Sharia to have such a Talaq witnessed and attested to by qualified individuals to prevent disputes. The FCB offers these services.
A9. In the event that all avenues of saving the marriage have been exhausted, Sharia has given the husband the authority to end the marriage in the following way by pronouncing the words of Talaq (divorce) to his wife only once, whilst she is not in her menstrual cycle. This will count as one revocable divorce.
Should the husband change his mind, he still has the option take back the wife during the Iddah period subject to not having pronounced a total of three Talaq’s.
If the Iddah expires the single revocable Talaq (Talaq Raji’) will become a single irrevocable Talaq (Talaq Baa-in) and the husband will now not have the right take the wife back except through a new freely contracted Nikah (marriage) and a new Mahr (Dowry).
It should be clear that, although commonly misunderstood, three Talaq’s are not required to be pronounced in one go or even separately to affect a Talaq in the Sharia.
Indeed doing so is contrary to the Sunnah (guidance of the Prophet peace be upon him) and is considered an innovation. Rather only one Talaq is required to be pronounced as detailed above.
FCB also offers advice and guidance on the above procedure as well as a service to formally document the Talaq and provide a certificate evidencing it.
A10. Yes. However, the exact words used will have a bearing on whether the divorce is revocable (Raji`) or irrevocable (Baa-in) etc.
A11: General marriage counselling and advice or a fatwa (legal edict) has no fee. For applications submitted seeking the council to issue a decree of Khula, Talaq and Faskh etc. there is a charge of £200 (non-refundable).
A12: It should be remembered each case varies and thus no fixed time limit can be stipulated, however, depending on the exact nature of the circumstances, if both the husband and wife are cooperative, the case is on average hoped to be completed within a few weeks.
A13: It depends on the nature of the individual’s case; for example it will be taken in to consideration if there are; sufficient grounds for dissolution, the extent of cooperativeness of the husband, the existence of evidence to substantiate claims (such as a medical report, availability of witnesses etc.) and other similar factors.
A 14 A mother has the right to custody for her son until he reaches 7 (lunar) years of age. From this age and beyond, it is the right of the father. In the case of a daughter, the mother has the right of custody until the daughter reaches 9 (lunar) years of age and beyond, then the right transfers to the father. However, it is also permissible for the father if he so wishes, to allow the custody of the children to remain with the wife, during his own period of entitlement.
If the mother during the period of her entitlement to custody (i.e. up to the age of 7 for a male child and age 9 for a female child), chose to get married again with someone unrelated to the said children, she would in this situation automatically lose her right to custody. The right of custody will now instead transfer to the women folk on the mother’s side, such as the maternal grandmother and then the maternal aunty and so on and so forth, in accordance to the Shariah designated order.
A 15 It is the right of the father/mother to see his/her children whenever he/she reasonably so wishes. Each parent must not prevent the other from having access to their children, as that is regarded in the Shariah as zulm (oppression) and very sinful. However, if there is a genuine threat of harm coming to the children by allowing their father or mother to have access to them, then arrangements appropriate to the situation should be made, ideally with the guidance of a religious authority such as a Shariah council.
A 16 The living expenses for the dependent children born during the said marriage will remain the responsibility of the husband, even after divorce. It should be noted that even after divorce, it is still the right and responsibility of the father to arrange for his own daughter’s marriage as he is still regarded as the wali (Shariah designated guardian) of the daughter, this duty also includes paying for the reasonable expenses of the marriage.
A17: It will count as three Talaqs.
Irrespective of whether a man pronounced to his wife the words of Talaq in one statement (e.g. “I give you Three Talaqs”), or in three separate statements (e.g. I give you Talaq, I give you Talaq, I give you Talaq.”), according to the unanimous verdict of all Schools of Islamic Law (Hanafi/Shafi/Maliki/Hanbali) that these three Talaqs will be regarded in sharia law as being three Talaqs and a husband will cease to have the right to take back his wife without a sharia based Halalah.
A Shariah based Halalah is whereby the wife freely marries someone else after having been divorced thrice and then after consummation of that second marriage is given divorce by the second husband or the second husband passes away, in this situation she may now remarry the first husband with a new marriage contract and with a new mahr (dowry).
It should be clear that in the past thirteen hundred years of Islamic history, this ruling has been consistently applied throughout the Muslim lands. It is a fact that for all this time never has an Islamic court or an Islamic Judge ever issued a verdict of one Talaq during the existence of the Khilafah. Furthermore, in recent times, the Islamic courts of Saudi Arabia revisited the issue and after having a team of senior scholars (هيئة كبار العلماء) research the issue, they concluded that according to the majority opinion of the these senior scholars of Saudi Arabia, indeed three Talaqs constitute three and not one based on evidences from the Quran, Sunnah, Ijma, Qiyas and this was the dominant view of the companions of the Prophet peace be upon him. They write:
“Verily the view that Three Talaqs are three is the view of the majority of the Islamic scholars. Indeed it was accepted by `Umar, `Uthman and `Ali r.a., `Abdullah bin `Abbas, Ibn `Umar, Ibn Mas`ud, `Abdullah bin Zubayr, `Abdullah bin `Amar and other than them from the companions of the Messenger of Allah ۔ﷺ”
A formal detailed fatwa to this effect was subsequently issued under the auspices of the Permanent Committee for Islamic Research and Fataawa (al-Lajnah ad-Daa'imah lil-Buhooth al-'Ilmiyyah wal-Iftaa) in 1970 corresponding to the Islamic date 1391AH/7/8. The signatories to this fatwa ( legal edict) included such eminent scholars as; Shaikh `Abd al-`Aziz Bin Baz, Shaikh Muhammad al-Amin al-Shanqiti, Shaikh `Abdullah Bin al-Manee` amongst many other reputable scholars.
(A reprint of the entire Fatwa can be found in Ahsan al-Fataawa, Hukm al-Talaq al-Thalaath, volume 5, Pg.144 published in 2004 by H.M Saeed Company, Karachi).