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).
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.
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 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.
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 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 arbitrate and resolve marital disputes 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. See Islamic references below for more details.
519/ حاشية الدسوقي على الشرح الكبير2 (1) اعْلَمْ أَنَّ جَمَاعَةَ الْمُسْلِمِينَ الْعُدُولِ يَقُومُونَ مَقَامَ الْحَاكِمِ فِي ذَلِكَ وَفِي كُلِّ أَمْرٍ يَتَعَذَّرُ الْوُصُولُ فِيهِ إلَى الْحَاكِمِ أَوْ لِكَوْنِهِ غَيْرَ عَدْلٍ ا ه 415/ مواهب الجليل لشرح مختصر الخليل 5(2) ...ولزوجة المفقود الرفع للقاضي والوالي ووالي الماء وإلا فلجماعة المسلمين... 156/ التاج والإكليل لمختصر خليل 4(3) وَقَالَ الْقَابِسِيُّ وَغَيْرُهُ مِنْ الْقَرَوِيِّينَ : لَوْ كَانَتْ الْمَرْأَةُ فِي مَوْضِعٍ لَا سُلْطَانَ فِيهِ لَرَفَعَتْ أَمْرَهَا إلَى صَالِحِي جِيرَانِهَا يَكْشِفُوا عَنْ خَبَرِ زَوْجِهَا ، ثُمَّ ضَرَبُوا لَهُ الْأَجَلَ أَرْبَعَةَ أَعْوَامٍ ثُمَّ عِدَّةَ الْوَفَاةِ ، وَتَحِلُّ لِلْأَزْوَاجِ لِأَنَّ فِعْلَ الْجَمَاعَةِ فِي عَدَمِ الْإِمَامِ كَحُكْمِ الْإِمَام...ِ 302/ حاشية الدسوقي على الشرح الكبير 3(4) تَنْبِيهٌ : مِنْ جُمْلَةِ أَمْرِ الْغَائِبِ فَسْخُ نِكَاحِهِ لِعَدَمِ النَّفَقَةِ أَوْ لِتَضَرُّرِ الزَّوْجَةِ بِخُلُوِّ الْفِرَاشِ فَلَا يَفْسَخُ نِكَاحَهُ إلَّا الْقَاضِي مَا لَمْ يَتَعَذَّرْ الْوُصُولُ إلَيْهِ حَقِيقَةً أَوْ حُكْمًا بِأَنْ كَانَ يَأْخُذُ دَرَاهِمَ عَلَى الْفَسْخِ وَإِلَّا قَامَ مَقَامَهُ جَمَاعَةُ الْمُسْلِمِينَ كَمَا ذَكَرَ ذَلِكَ شَيْخُنَا الْعَدَوِيُّ. 8/ رد المحتار56(5) مطلب: في حكم تولية القضاء في بلاد تغلب عليها الكفار وفي الفتح: وإذا لم يكن سلطان ولا من يجوز التقلد منه كما هو في بعض بلاد المسلمين غلب عليهم الكفار كقرطبة الآن، يجب على المسلمين أن يتفقوا على واحد منهم يجعلونه واليا فيولي قاضيا، ويكون هو الذي يقضي بينهم، وكذا ينصبوا إماما يصلي بهم الجمعة ا ه وهذا هو الذي تطمئن النفس إليه فليعتمد. نهر. 254/2 للشيخ محمد تقي العثماني بحوث في قضايا فقهية معاصرة (6) فسخ نكاح المسلمات من قبل المراكز الاسلامية في بلاد غير اسلامية : سلطة جماعة المسلمين في فسخ النكاح. ...فالمخلص الصحيح للنساء المسلمات اللآتي يردن فسخ نكاحهن في بلد غير مسلم أن يرجعن إلى جماعة مكوَّنة لهاذ الغرض من قبل العلماء أو المراكز الإسلامية في ذلك البلد, وإن هذه الجماعة تتولى جميع الإجراءات الشرعية اللازمة في هذا الصدد و بعد اتخاذ الخطوات اللازمة للتأكد من أن هناك سببا شرعيا يبرر الفسخ, فإنه يجوز لها أن تفسخ النكاح, أو تطلق المرأة بالنيابة عن زوجها, أو تحكم بموت الزوج عند كونه مفقودا, على ما هو مبسوط في كتب الفقه و يعتبر حكمها نافذا من الجهة الشرعية, و يجوز للمرأة أن تنكح زوجا آخر بعد انقضاء العدة. قرارالمجمع الفقهي الاسلامي برابطة العالم الإسلامي (7) بشأن موضوع : مشروعية قيام المراكز الإسلامية وما في حكمها بتطليق زوجات المسلمين اللاتي ترافعن إليها أو النظر في ذلك ممن حصلن على الطلاق من محاكم غير إسلامية: الحمد لله وحده ، والصلاة والسلام على من لا نبي بعده ؛ نبينا محمد ، وعلى آله وصحبه أما بعد: فإن مجلس المجمع الفقهي الإسلامي في دورته التاسعة عشرة المنعقدة بمكة المكرمة في الفترة من 22ـ27/شوال/1428هـ الذي يوافقها 3ـ8/نوفمبر/2007م قد نظر في موضوع: مدى مشروعية قيام المراكز الإسلامية ، وما في حكمها بتطليق زوجات المسلمين اللاتي ترافعن إليها أو النظر في ذلك ممن حصلن على الطلاق من محاكم غير إسلامية. وقد ناقش المجلس ما يواجهه المسلمون خارج ديار الإسلام من تحديات ونوازل، وقدر حرصهم على معرفة الأحكام الشرعية، وتطبيقها في أمور حياتهم، وبعد استعراض البحوث التي قدمت والاستماع إلى المناقشات المستفيضة حول الموضوع قرر ما يأتي: أولا : حث المسلمين في البلاد غير الإسلامية على اللجوء إلى الهيئات والمؤسسات والمراكز الإسلامية المعتمدة للقيام بإجراءات الزواج أو الطلاق، وسائر أنواع التفريق، مع مراعاة القوانين المنظمة للعقود في تلك البلاد؛ لضمان استيفاء الحقوق....
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 marital breakdown, the FCB makes all reasonable efforts to mediate and reconcile both spouses. In this regard both spouses, where possible and 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 offer a written reconciliation agreement service (including a Sulh Agreement) which can be used by both parties to ensure that any and all terms for reconciliation are abided by both spouses.
3. If reconciliation is not possible, then the FCB will Islamically assess if the Nikah may be amicably ended in case the marriage has irretrievably broken down, via Talaaq from the husband or a mutually agreed divorce (Khula) or if the grounds for dissolution (Faskh) of the Nikah are found, by the Council issuing a ruling of Faskh etc.
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.
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 will proceed on the basis of the Qasm (Islamic oath) taken from the other spouse regarding the claims alleged in accordance to Islamic law, subject to the particular circumstances of the case.
6. Once the FCB has 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.
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. However, if either spouse withholds or conceals any relevant information regarding the case, or provides false or misleading information, any ruling or certificate issued, may be rendered null and void with immediate effect.
9. All meetings and correspondence are to be conducted with Islamic etiquette and Adaab. We understand that the process of dealing with marital breakdown 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, more specific information appropriate to the individual’s case, can be found by directly contacting the FCB.