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The two arbiters need not invite either spouse to raise objections before ruling between them, for they do not rule on the basis of conclusive testimony. Rather, they rule on the understanding of the spouses’ circumstances that they have reached through examination and inquiry.
Section
Divorce in return for compensation (khulʿ) is an exchange for the husband’s rights of marital intimacy. Through it, the woman gains authority over herself, and the husband acquires full ownership of the compensation she owes him, without needing to take possession of it, since it is transferred in return for consideration. This differs from gifts, charitable donations, and similar transfers made without consideration. This is the well-known position in the school.
However, a statement in the book of Muhammad ibn al-Mawwāz indicates otherwise. He said that if a husband owes a debt and assigns his creditor to his wife for payment from the compensation for which he divorced her, then she dies before the creditor collects his debt, the creditor may seek repayment from the husband. He thus did not treat this compensation as an established debt owed by her: he allowed the creditor recourse against the husband and did not regard the assignment as binding in the manner of assignments against debts.
However, what the woman receives in exchange for her payment is not property, but peace of mind and release from the husband’s marital authority. His entitlement to the compensation is therefore recognized only if no impediment exists. If others have a claim affecting it, that claim must be considered according to its strength or weakness. Some such claims take precedence over divorce in return for compensation; concerning others, there is disagreement as to which takes precedence.
Among the claims that take precedence is a master’s right to the property of his female slave who is authorized to trade, and to that of a female slave under a contractual emancipation agreement. There is no disagreement within the school that if either obtains a divorce in return for compensation, it is valid only with the master’s permission, because of the strength of that right.
There are two opinions concerning whether a woman in debt may obtain a divorce in return for compensation without her creditors’ permission. The first is that she may not, because she has given her husband her property for something in which they have no interest, unlike marriage. The second is that she may, just as she may marry.
The reasoning behind the first opinion’s distinction between divorce in return for compensation and marriage is that marriage is a pressing need, like food and drink, and creditors extend credit with that understood. Divorce in return for compensation, however, is not a pressing need; rather, it occurs only rarely