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
Q3. What is meant by Faskh or Faskh of Nikah?
A3. Faskh or Faskh of Nikah means the dissolving of a Nikah contract by the decree of the Muslim judge or an Islamic Council where sufficient grounds for the decree exist according to Islamic Law.
Q4. What are the reasons for which a Muslim woman is permitted according the Islamic Law to seek the dissolution of her Nikah through an Islamic Council?
A4. Islam has given a woman the right to seek the dissolution (Faskh) of her Nikah on the basis of valid grounds, 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 grounds exists in the particular circumstances of any given case.
Q6. Can a woman seek a Faskh of Nikah without the grounds for such a Faskh being present as stipulated by Islamic law?A6. It should be clear that a Sharia Council cannot decree a Faskh of Nikah where the Islamically defined grounds for Faskh are not present. Any Nikah thus dissolved will remain intact. A wife who does not have Islamic 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 Nikah have been exhausted, Islamic law has given the husband the authority to end the Nikah 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 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.
Q11. Is there any fee for the services provided by the FCB?
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 or Faskh for the wife, or a Talaq application submitted by the husband etc, there is a single fee of £200 (non-refundable) applicable equally to all applications by either the wife or husband, to cover the administration costs.
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, the case is on average hoped to be completed within a few months.
Q13. By Applying to the FCB will I definitely get my Nikah dissolved (Faskh)?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 and other similar factors.
A 14 In general and from an Islamic faith perspective, any mutually agreed arrangement between the spouses in this regard may be acceptable subject to the circumstances and the best interests of the child. It should be noted that the FCB does not rule on custody disputes and advises spouses to have recourse to a solicitor for such legal disputes.
A5. It should be clear that the Council does not deal with civil divorce, rather, its work is related to the religious perspective linked with the Islamic Nikah and Talaq. If a civil divorce has been issued then a religious divorce must also be issued so there is harmony between the civil divorce and religious divorce. Thus, upon receiving a civil divorce, a Muslim husband or wife needs to end the Nikah Islamically and the Council can help assess the situation and provide religious guidance in this regard on a case by case basis.
A 15 Under normal circumstances, generally each spouse may see their child if it is mutually agreed between the spouses and reasonable to do so in the best interests of the child. It should be noted that the FCB does not rule on custody disputes and advises spouses to have recourse to a solicitor for such legal disputes.
A 16 The living expenses for the dependent children born during the said Nikah will Islamically remain the responsibility of the husband, even after Talaq.
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. 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).
A18. The FCB always seeks to provide the highest level of service and is constantly trying to improve its services. In this regard if there are any, suggestions, feedback, complaints etc. they should be forwarded in writing to the FCB via post or email, addressed to the FCB General Manager, who will try to quickly and fairly look into the matter and give a response accordingly. In the case a written complaint is received as described, the FCB uses the following complaints procedure.
The complaint will be recorded in the complaints log and an appropriate person will be delegated to investigate it and to take appropriate action. If the complaint relates to a specific person, where possible and appropriate, they should be informed and given a fair opportunity to respond, as often, the person responsible for the issue being complained about, may best be able to resolve a complaint. Please note, all complaints must be submitted in writing, prior to the FCB issuing its final decision in an Islamic divorce case, complaints must not be submitted after a final ruling has been issued. In the latter case, the FCB will only give a response at its discretion.
Ideally complainants should receive a definitive reply within one month. If this is not possible because, for example, an investigation has not been fully completed, a progress report should be sent with an indication of when a full reply will be given.
Whether the complaint is justified or not, the reply to the complainant should describe the action taken to investigate the complaint, the conclusions from the investigation, and any action taken as a result of the complaint.
A19. Any service, information, ruling, certification, advice and guidance provided by the FCB whether oral or written is solely from the perspective of the Islamic faith, based on the Qur'an and Sunnah, as understood by the recognised schools of Islamic law such as the Hanafi, Shafi and Maliki schools of Islamic law (Madhaahib), and as interpreted by the FCB. For matters pertaining to English law, the FCB advises individuals to refer to a solicitor and or the relevant authorities. It should be clear that the FCB does not rule on the civil marriage contract, rather, it deals with the religious aspect of a marriage. In this way it can where applicable, help a spouse to obtain a formal Islamic divorce (Talaq) to go alongside a civil divorce to bring into harmony for the individual both the Islamic teachings and the civil law. The faith based mediation and arbitration service provided by the FCB under the Arbitration Act 1996, seeks to help resolve family disputes as amicably and fairly as possible with regards to all parties, as responsible law abiding citizens.
A20. In general, a Shariah Council normally functions as a body comprising of Muslim scholars, which deal with matters of the Islamic faith and in particular for resolving and arbitrating in marital disputes related to Nikah according to Islamic law.
In accordance to the Maliki school of law, such a body can be regarded as being in the ruling of a Qadhi, as indicated by the Maliki school’s central texts of Fiqh. Similarly in the Hanafi school, a Qadhi can be established in a land where a Qadhi has not been appointed by a Muslim state, via the mutual agreement of the Muslims in that location, as mentioned in Rad al-Muhtaar.
Thus, Islamic scholars regard Shariah Council’s and similar such Islamic institutes, as being able to offer this form of faith based arbitration to resolve marital disputes related to Nikah in the manner described, for the reasons mentioned.
This ruling has been formally declared by different International Islamic scholars in a resolution of the World Muslim League in its 19th Session held on 3-8 November 2007 in Makkah al-Mukarramah, regarding the jurisdiction of Islamic Institutes ruling in the area of Muslim personal law matters in non-Muslim countries. For detailed Islamic references please see the Fatwa section on "divorce".
A21. In general, the FCB will seek to offer its independent and impartial Islamic marital arbitration services as follows:
1. Firstly and on principle, in the event of the Nikah breaking down, the FCB makes all reasonable efforts to mediate and reconcile both spouses where possible. In this regard both spouses, where appropriate, are invited to attend a meeting to discuss the issues submitted for Islamic marital arbitration.
2. If reconciliation is found to be possible, the FCB can for example offer a written reconciliation agreement (including a Sulh Agreement) which through the mutual agreement of the parties can be used to ensure that any and all terms for reconciliation are abided by both spouses.
3. If reconciliation is not possible, then the FCB arbitrational panel consisiting of a minimum of three Islamic scholars will Islamically assess if the Nikah may be amicably ended in case the Nikah has irretrievably broken down; via Talaaq from the husband or a mutually agreed divorce (Khula) or by dissolving the Nikah based on (Tahkeem) or if the grounds for dissolution (Faskh) of the Nikah are found by the Council issuing a ruling of Faskh etc. as appropriate to the circumstances of each individual case and in accordance with the relevant Islamic rulings.
4. It should be noted, that after a successful submission of the application for Islamic marital arbitration to the FCB, both spouses are required to reply to all FCB correspondence as soon as possible. However if any spouse decides not to co-operate, it is possible that a decision may be taken by the FCB in the absence of that spouse subject to the case details.
5. To contact a spouse, every reasonable effort is made; this includes the use of recorded letters sent by the FCB. If the spouse has not responded after having been given an opportunity to reply, then the FCB may proceed without the participation of that spouse subject to the particular circumstances of the case.
6. It is FCB policy that the FCB panel of Islamic scholars always make a collective decision on the matter and the views or opinions of any one scholar during the process of Islamic marital arbitration are always subject to this final collective decision. Once the FCB panel of Islamic scholars have decided to dissolve a Nikah, a Talaq certificate will be sent to the applicant and letter with a copy of the certificate is forwarded to the other spouse. The ruling of the FCB panel of scholars in this regard is final, binding and not open to appeal. Please note that all documentation of the FCB, inter alia certificates, rulings etc. are and continue to remain at all times the exclusive property of the FCB.
7. In terms of time frame, the above procedure can take up to several months, depending on the circumstances of each case. However, if both spouses are co-operative, it can be concluded sooner.
8. It should be clear, that the information provided by either spouse to the FCB is treated as confidential and is not discussed with any third party except with the written consent of both spouses. However, if either spouse withholds or conceals any relevant information regarding the case, or provides false or misleading information, any ruling or certificate issued ect, may be rendered null and void with immediate effect and the certificate so issued is to be returned to the FCB immedately.
9. All meetings and correspondence are to be conducted with Islamic etiquette and Adaab. We understand that the process of dealing with a Nikah breaking down and Talaaq can be very difficult. The FCB follow a strict zero tolerance policy on any abusive behaviour, towards any party. Thus any such behaviour will accordingly be reported to the police.
10. It is important to note that, each case submitted for Islamic marital arbitration will have its own particular details and circumstances, thus the above procedure is provided only as a general guideline. The FCB reserves the right to vary its procedures in the light of the particular circumstances of any given case, at its discretion. More specific information appropriate to the individual’s case, can be found by directly contacting the FCB.