Chapter Three
On Khulʿ (Divorce by Redemption)
Section One • The Permissibility of Khulʿ
The terms khulʿ, fidyah (redemption), ṣulḥ (settlement), and mubāraʾah all converge on a single concept: the wife offers a consideration in exchange for her divorce. The jurists, however, employ these names with specific nuances: khulʿ is used when she gives back everything the husband had given her; ṣulḥ when she returns only part of it; fidyah when she gives more than what she had received; and mubāraʾah when she waives a right she holds against him.
Discussion of this type of separation is confined to four sections:
- the permissibility of its occurrence;
- the conditions for its validity—that is, the permissibility of concluding it;
- its legal classification—whether it counts as a pronouncement of divorce or as a dissolution; and
- the rulings that follow from it.
Section One
On the Permissibility of Khulʿ
With regard to its permissibility, the great majority of scholars affirm that khulʿ may lawfully take place. The proof lies in the Qur’an and the Sunnah.
From the Qur’an: “There is no blame on the two of them regarding what she gives up to ransom herself” (al-Baqarah 2:229).
From the Sunnah: the ḥadīth of Ibn ʿAbbās: “The wife of Thābit ibn Qays came to the Prophet (peace and blessings be upon him) and said, ‘Messenger of Allah, I do not fault Thābit ibn Qays in character or in religion, but I fear ingratitude after entering Islam.’ The Messenger of Allah (peace and blessings be upon him) asked, ‘Will you return his garden to him?’ She replied, ‘Yes.’ He said, ‘Accept the garden and divorce her with a single pronouncement.’”
Al-Bukhārī, Abū Dāwūd, and al-Nasāʾī record the report in these words, and its authenticity is unanimously agreed upon.
Abū Bakr ibn ʿAbd Allāh al-Muzanī broke with the majority, holding that it is unlawful for a husband to take anything from his wife. He argued that the verse just cited was abrogated by the Almighty’s statement: “If you wish to replace one wife with another and you have given one of them a treasure, do not take anything of it” (al-Nisāʾ 4:20). The majority, however, understand the latter verse to refer to taking something back without the wife’s consent; with her consent, they say, it is permissible. Hence the dispute turns on whether the wording is to be taken in its full generality or as restricted in scope.
Section Two • The Conditions for Khulʿ to Take Effect
The conditions for the permissibility of khulʿ relate to four matters:
- the amount that may lawfully be taken;
- the nature of the item taken;
- the circumstance in which it is taken; and
- the description of the woman—or, where she lacks legal capacity, her guardian—for whom khulʿ is allowed.
This section therefore comprises four issues.
Issue One: Concerning the amount for which a woman may secure a khulʿ. Mālik, al-Shāfiʿī, and a number of others maintain that when the disobedience (nushūz) originates with the wife, it is permissible for her to ransom herself with more than the amount of her dower that would revert to her, or with the same amount,