Important matters to consider when entering into a Khula agreement
- Both parties should have the opportunity to seek independent Islamic legal advice from an expert (Alim) before entering into an agreement or deciding to do Khula.
- Both parties should agree to do Khula (husband accepts the offer made by wife) otherwise no Khula will take place.
- There should be full and frank financial disclosure such as;
- Khula in lieu of remaining due Mahr (husband keeps the due Mahr money);
- Other financial offers by wife to do Khula should be discussed.
- There must be no compulsion on entering in to a Khula agreement.
- The Khula agreement should be fair in the circumstances.
- In the situation where the Mahr money is paid off by husband, then wife can use the future Nafaqah (financial support during the Iddah period) which is compulsory to be provided by the husband in lieu of having paid for the said Khula.
خلع “Khula” means: to take off, to pull out etc.
According to Islamic terminology Khula means to pull out, terminate and make free oneself from the marriage contract initiating by a wife in lieu of some monetary means from her husband. This is achievable by both mutually agreeing in exchange of due Mahr money which was unpaid or partly paid by the husband at the time of marriage contract.
For example; Khula will only happen if the wife is willing to give up this in exchange to free herself from the marital relationship. In addition, the husband also needs to agree to her proposal.
Alternatively, even if the Mahr money is paid off and wife wants to make a Khula then she can ransom herself by offering some monetary means including any other valuable possession to her husband. Provided that husband also agrees to her proposal, then Khula can take place mutually. If any of the above is not met then Khula cannot take place, instead, if both couple wants to terminate the marriage contract, it will be either any of the following:
1. Husband gives One Talaq to his wife verbally (and best practice is to give it in writing to avoid any future dispute) during the prescribed best time (see our “Procedure for giving Talaq” page) and pays off the due Mahr (if it hasn’t been paid off) and wife observes the Iddah period (three menstrual cycles) which eventually will terminate the marriage after the expiration of the Iddah.
2. In a situation where a husband is not willing to give her Talaq and she is unhappy to live under his marriage, then she needs to contact an Islamic institution or arbitrator to seek Talaq from her husband on her behalf, provided that she also meets One of the Five valid grounds. When wife has a valid reason to get divorced and husband does not give her divorce then the Islamic institution has the authority from the Shariah to Faskh (dissolve) the marriage (just like the court has power to annul/dissolve/void the marriage) as she cannot give Talaq to herself. Talaq needs to be given only by husband (unless this power (Tafweedh) to take Talaq upon herself was vested in the marriage contract at the first place).
Some practical scenarios
Scenario 1
Junaid and Samira after putting much of their efforts to save the marriage is failing to save it. Junaid is offering Samira to do Khula in lieu of his some unpaid Mahr money. However, Samira is unwilling to give up her due Mahr and demands to be paid off in full. In this case Khula will not take place due to Samira unwilling to mutually agree to do Khula.
Scenario 2
After both couple had extreme argument, both splits and lives in two different places. Nasra moves out from her husband’s family home. The couple has unpaid Mahr. Humaiyun thinks since she has moved out from his place then she needs to initiate the Khula in exchange of the due Mahr. However, Nasra denies and insist that her due Mahr needs to be paid off when husband issues the Talaq. In this case Khula will not take place due to Nasra unwilling to agree to do Khula. Moreover, despite whoevers fault it is, Nasra does not need to star the Khula, instead she can wait for her husband to give Talaq or incase he doesn’t give divorce she can then seek to Faskh the Nikah as mentioned above.
Scenario 3
After most of their disagreements by both couple they have decided to terminate their marriage contract in the best interest of their future. Hamna offers Juhain to waive her due Mahr in exchange for herself to become free from the marital contract. Juhain accepts her offer and frees her from the marital contract. In this scenario the Khula will take place as both couple has mutually agreed to terminate their marriage in lieu of their Mahr money.
Evidence from Qur’an & Sunnah
Allah says in the Qur’an in: Surah Al-Baqara, Verse 229: “And it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby. These are the limits of Allah, so do not exceed them and whoever exceeds the limits of Allah these it is that are the unjust”.
Opinions of great scholars
Imam Abu Hanifa r.a and Imam Malik r.a are in the opinion that “Khula” is actually form of Talaq which dissolves the marriage and cannot be retrieved by her husband if the Khula takes place three times just like the “Three Talaq” given by husband. On the contrary Imam Ahmed Ibn Hamble r.a holds the opinion that it is actually a separation which in latter time if husband decides to retrieve her then it is possible even after Khula takes place many times.
It is narrated in the following Hadith: Narrated Ibn `Abbas r.a: The wife of Thabit bin Qais came to the Prophet (ﷺ) and said, “O Allah’s Messenger (ﷺ)! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him).” On that Allah’s Messenger (ﷺ) said (to her), “Will you give back the garden which your husband has given you (as Mahr)?” She said, “Yes.” Then the Prophet (ﷺ) said to Thabit, “O Thabit! Accept your garden, and divorce her once.”
[Sahih al-Bukhari 5273] This hadith proofs that this was absolute Talaq and not in the form of just separation.
If you want to make an application for your “Khula” please go to “Application Form Woman” section where you will find the application forms in pdf format. Follow the procedure and Download the forms and send it to us filled in.
NOTE: Both application for Khula and Talaq are the same application form which you only need to tick the box “Khula” in the form.
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Please read the PDF Article (in detail) below to understand the system of “Islamic Divorce procedure in the light of the Qur’an and Sunnah“ (8 pages)
