What is khul'?
If one of them thinks that he does not establish the right of marriage for his companion as it is necessary for the hatred he believes, there is no sin on the woman to ransom herself, nor on the husband to take the ransom.
The Jurisprudence definitions of divorce
Where Al - Dahriah defined it
That it is the redemption if the woman hates her husband and fears that he will not fulfill his right, or she fears that he will hate her and not fulfill her right, she may ransom him and divorce her if he is satisfied.
The Hanbalis defined it as
The husband’s separation from his wife in return for compensation that he takes from her or from someone on her behalf.
Shafi'i defined himit as
He takes it from her or someone on her behalf, Shafi'i knew him to be, Separation between the spouses, with an intended compensation, referring to the husband with a word of divorce.
The dislocation was also defined as:
A man's separation from his wife is in return for what he gets.
Khula is seen from the legal point of view: that it is
contracts are concluded with offer and acceptance, but the consideration in it differs for both men and women, on the part of the man, it is considered a suspension of divorce on the acceptance of money, and from the woman's side it is considered a ransom and a negotiation
What is the evidence from the Qur’an and Sunnah?
Allah says
﴿ الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ وَلَا يَحِلُّ لَكُمْ أَنْ تأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ علَيْهِمَا فِيمَا افْتَدَتْ بِهِ ﴾ [البقرة: 229].
Divorce twice, then withholding according to what is kindness, or release with kindness, and it is not lawful for you to take anything of what you have given them, except that they fear that they will not keep the limits of God, and if you fear that they will not keep the limits of God, there is no blame on them for what she gave as ransom.” [Al-Baqarah: 229].
And what is meant here
If one of them thinks that he does not establish the right to marry his partner as he is required to, because of the hatred he believes, there is no sin on the woman to ransom herself, nor on the husband to take the ransom
From the sunnah
(The first case of divorce in Islam)
Habiba bint Sahl al-Ansari, wife of Thabit bin Qais bin Shammas
In Sahih al-Bukhari, on the authority of Ikrimah, on the authority of Ibn Abbas, that the woman of Thabit bin Qais said to the Messenger of God - may God bless him and grant him peace - I hate not fulfilling his rights because of my hatred for him, the Messenger of God - may God’s prayers and peace be upon him - said: “Will you return his garden to him? It is the dowry that he gave her, and she said: Yes, the Messenger of God - may God’s prayers and peace be upon him - said to Thabit: ((Accept the garden, and divorce her once)).
And in the Hadith
(Any woman who asks her husband for a divorce, without any problem, so the fragrance of Paradise is forbidden to her).
Does the religion lawful it?
The ruling on khula’ is the same as the ruling on divorce. It is permissible, but it is abhorrent, the legislator forbade it if it was for no reason other than the wife’s desire to separate from this one and marry that one, this is what is known as tasting, so the Prophet - may God’s prayers and peace be upon him - said: ((Any woman who is making khula from her husband without recalcitrance, upon her is the curse of God, the angels, and all the people, the divorced women are the hypocrites))).
The divorce in law
As for divorce through the law, in all cases it is an irrevocable divorce, In all cases, the ruling is not subject to appeal any way of appeal.
The legitimate reasons that made khula lawful?
1- Either one of them is of bad character, or they are both
This leads them to not establish the limits of God, while obligating each of them from the rights of marriage, In His saying - the Most High -: {And for them is the same as that which is owed to them in a customed } [Al-Baqara: 228].
The Customed: What was agreed upon by the people of righteousness in society
2- Either one of them is hateful to the other, and it becomes difficult for him to be kind and courteous.
This leads him to violate God's command regarding the rights of marriage that obligated each one of them, which obliges him, and if one of these two occurred, and they feared those who left the establishment of the limits set by God for them, the khula.
The wisdom of the legality of khula
When God - Glory be to Him - made divorce in the hands of the man, He can resort to it as a last resort to get rid of a marriage that he thought did not serve its intended purpose, at the same time, he gave the woman the right to dispose of her marriage if she saw that it did not fulfill its intended purpose, by taking off; so that marital life is based on freedom in its inception, and freedom in its continuation as well; it is unreasonable, Indeed, it is not fair for a woman to feel real dislike for her husband for any moral reason, then she is forced to live with him; Because a married life like this is not good, whether for the spouses or the community; Because if the wife feels that her husband is imposed on her forever, with her hatred and aversion to him, she may kill him or kill herself, or depart from her religion, or go down the path of seduction and deviation.
The ruling on the husband requesting the wife to dissociate herself with a ransom that she pays to him
They are not without two things, namely
The Permissibility - the inviolability
The husband's request of the wife to divorce herself is permissible if he sees what calls him to do so; the husband has the right to harass his wife if it is justified, such as if she is disobedient, or an adulterer, or she does not perform what God has enjoined upon her, such as prayer, fasting, and so on, until he resorts to a request for khula with compensation that you pay him, and if it is permissible to harass the wife in that case until she asks for divorce, It is foremost that the request be without restriction is permissible, The Almighty said: (( And do not prevent them, lest you take away some of what you have given them unless he commits a clear indecency, and live with them kindly, If you hate them, perhaps you hate a thing and God puts in it a lot of good).[5]
The pillars of the khula
1 - Mukhla’: or divorced by khula’
It is the husband from whom divorce is valid, or his representative, It is required for the husband or agent to be an adult, sane, and of sound mind, It is not valid to take off the imbecile, or the insane, or the boy; So whoever validated his divorce, the validity of his khula.
2- The absolutely divorced wife
She is the wife, in which it is stipulated that she be from a valid, legally invalid marriage, It is also stipulated that she should not be irrevocably divorced, While it is valid to take off from the revocable divorcee; because it is in the legal rule of the wife, and it is also required that she be eligible to dispose of her money, because the compensation is of the kind of donation, so it was necessary to be eligible for it, It is for the wife to be an adult, sane, and rational, and it is not valid for the one who is interdicted for foolishness or immorality, Just as it is not valid from the minor, or the insane, while it is valid from the sick, even if her illness is death.
3 - The formula
There were many sayings of the scholars of the nation regarding the formula of khul'
4 - The compensation
If it was mentioned in the divorce, and the husband accepted it, and the wife committed to it, then the separation took place between them, The wife was irrevocably divorced. While if not mentioned compensation in dislocation.
In the narriation
On the authority of Katheer bin Abi Katheer, that a woman disobeyed her husband, so he referred her matter to Umar bin Al-Khattab - may God be pleased with him -, so he ordered Her husband to take her off even from her earring.
5- The compensation for it, which is the incision (the male/female member)
It is required that it be the property of the husband in the event of divorce. Because the compensation from the wife is in return for giving up this part, like the case of an irrevocably divorced woman, where the husband's property is gone for her husband, as for the retroactively divorced woman, it is valid to divorce her. For the survival of the husband's property for a privete part.
It results in divorce between the spouses
The dissolution of the marital knot between them, and the termination of their marriage, given that khul’ is annulment of the marriage, after the divorce, the spouses become foreign to each other. The jurists have opinions regarding determining the reality of divorce.
The number of divorces
khula is not counted as a one divorce
The divorced Udah
Most of the people of knowledge, including: Imam Ahmad, Al-Shafi’i, and Malik, went to the saying: the waiting period for a divorced woman is three months, as is the waiting period for a divorced woman, Some scholars that her waiting period is one menstruation, and it is narrated on the authority of Othman bin Affan, Ibn Omar, and Ibn Abbas - may God be pleased with them - and it is also a saying on the authority of Ahmed, and it was said by Ibn Al-Mundhir and others.
The divorced woman ( Mukhla’) rights
There are many opinions of scholars regarding the right of the divorced woman to alimony and housing, and this is explained in the following
The loss of the right of the divorced woman to alimony and housing
This is what the Malikis and Abu Hanifa went to, and the Malikis were excluded
The pregnant woman
As she remains entitled to alimony.
The divorced woman's rights are not forfeited by divorce unless the wording of the divorce explicitly includes that and that was about agreement between them, And the Hanbalis held that, and the majority of the Hanafis established the right of the divorced woman ( Mukhla) to housing without alimony, This is what Al-Shafi’i and Al-Laithi went to, and it is the saying of Malik Ibn Anas. For His saying - the Most High -: (Do not expel them from their homes, nor do they shall be expelled unless they commit a clear indecency)) Proving the right of the divorced woman ( Mukhla) to alimony without housing, which is what Imam Ibn Hazm went to.