His Wife Got A Khula‘ Separation From
The Court, But He Still Thinks That She Is His Wife:
Khula' Is Not Regarded As A Talaaq Even If The Word
Talaaq Is Used
Islamic Rulings -
Living Shariah Verdicts
Islamic Questions & Answers
My problem i got married with a divorced gal ,
we had a relation before her nikkah , but she got
nikkah with some1 else .. After her nikkah she got
divorced wid him n thn i married wid her only nikkah
infact .. After my nikkah her family forced her to
take a khulla from me , i didnt want to give her a
divorced i forced her to not to do this thing but she
waz arguin wid me n she has taken a khula from court
.. On may 2009 , but confusion is today 20th may 2010
still i dont sign that divorced form ,they took a help
from some political parties also . But i wont give her
divorced , for me im still married , but for them my
wife is free now , n now she is goin to get married
wid sum1 else ..
So i jus wanna knoe am i a divorcee now ? Or wat ?
Cuz still i dun wanna loose her .. Plzz answer me .
Praise be to Allaah.
In the case of khula‘, it is not stipulated that the
word of divorce be uttered; it is an annulment and not
a divorce (talaaq) according to the correct opinion.
When khula‘ is done, the wife is irrevocably divorced,
and the husband does not have the right to take her
back except with a new marriage contract.
Khula‘ may be given in return for financial payment,
such as if the wife returns the mahr to the husband or
gives up some of the delayed portion of the mahr. See
the answer to questions no. 126444 and 133859
The qaadi may oblige the husband to divorce his wife
by talaaq or by khula‘, if he finds cause to do so,
such as if the wife is being harmed. If the khula‘ or
divorce has been done through the court, the husband
has no choice but to refer back to the court and try
to convince the court to overturn its decision or to
get an official fatwa from the relevant department in
his country stating that the khula‘ is invalid, and
submit this fatwa to the court.
And Allah knows best.
Khula' Is Not Regarded As A Talaaq
Even If The Word Talaaq Is Used
My question is regarding khula.I have gotten
khula from my husband in front of shaikh and two
witnesses. After 6 months we decided to get back
together and got married with a new marriage contract.
Then again after about two years I asked for khula and
its been about 10 months now since then. We do have
one child together, inshallah his dad told me he
promises Allah and me that he wouldn't give me a hard
time like he did before. So for Allah's sake and my
son I am willing to marry him again. My question is
since I had khula done twice ( this would be our
"third" marriage contract if we got married again). I
was just wondering if its OK in Islam for us to get
married again? Does this count as three divorce? if
not does it count as divorce at all? Please advise us
as to what has to be done.
Praise be to Allaah.
Khula' is not regarded as a talaaq even if the word
talaaq is used, according to the more correct opinion.
This may be explained as follows:
1. If khula' takes place
without using the word talaaq, and is not intended as
a talaaq, then it is an annulment (of the marriage
contract) according to a number of scholars. This is
the view of al-Shaafa'i in his old madhhab, and it is
the view of the Hanbalis. The fact that it is an
annulment means that it is not counted as a talaaq.
The one who separated from his wife by khula' twice
may go back to her with a new marriage contract, and
it is not counted as a talaaq at all.
An example of that is if the husband said, "I
separated from my wife by khula' in return for
such-and-such an amount of money" or "I annulled her
marriage in return for such and such."
2. But if the khula'
involved the word talaaq, such as saying "I divorce (talaqtu)
my wife in return for such-and-such an amount of
money", then it is a talaaq according to the majority
of scholars. See al-Mawsoo'ah al-Fiqhiyyah (19/237).
Some of the scholars are of the view that this is also
an annulment and is not counted as a talaaq, even if
the word talaaq is used. This was narrated from Ibn
‘Abbaas (may Allaah be pleased with him) and was the
view favoured by Shaykh al-Islam Ibn Taymiyah, who
said: It is the stated view of Imam Ahmad and his
See: al-Insaaf (8/393).
Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him)
said: But the more correct view is that khula' is not
talaaq, even if the actual word talaaq is used. This
is indicated by the Holy Qur'aan. Allaah, may He be
glorified and exalted, said (interpretation of the
"The divorce is twice, after that, either you retain
her on reasonable terms or release her with kindness"
i.e., within the first two times, either keep her or
let her go, it is up to you.
"And it is not lawful for you (men) to take back (from
your wives) any of your Mahr (bridal-money given by
the husband to his wife at the time of marriage) which
you have given them, except when both parties fear
that they would be unable to keep the limits ordained
by Allaah (e.g. to deal with each other on a fair
basis). Then if you fear that they would not be able
to keep the limits ordained by Allaah, then there is
no sin on either of them if she gives back (the Mahr
or a part of it) for her Al-Khul‘ (divorce)"
So this is a separation on the basis of giving back
(all or part of the mahr). Then Allaah, may He be
glorified and exalted, says:
"And if he has divorced her (the third time), then she
is not lawful unto him thereafter until she has
married another husband"
If we count khula' as a talaaq, then these words "And
if he has divorced her" would refer to a fourth talaaq,
and this is contrary to scholarly consensus. The words
"If he has divorced her" mean a third divorce, "then
she is not lawful unto him thereafter until she has
married another husband"
The evidence in the verse is clear. Hence Ibn ‘Abbaas
(may Allaah be pleased with him) was of the view that
any separation in which compensation is paid is khula'
and not talaaq, even if the word talaaq is used. This
is the correct view. End quote from al-Sharh al-Mumti'
And he (may Allaah have mercy on him) said:
Every wording that points to a separation in return
for compensation is khula', even if the word talaaq is
used, such as saying for example, "I divorce (talaqtu)
my wife in return for compensation of one thousand
riyals." We say: this is khula', and this is what was
narrated from Ibn ‘Abbaas (may Allaah have mercy on
him), that everything in which compensation is
involved is not talaaq. ‘Abd-Allaah ibn al-Imam Ahmad
said: My father thought the same about khula' as Ibn
‘Abbaas (may Allaah be pleased with him) did, i.e., it
is an annulment, no matter what wording is used, and
it does not count as a talaaq.
An important issue stems from this: if a man divorces
his wife (talaaq) on two separate occasions, then
khula' takes place using the word talaaq, then
according to the view of those who say that khula'
using the word talaaq counts as talaaq, she is
irrevocably divorced from him, and she is not
permissible for him until she has been married to
someone else. According to the view of those who say
that khula' is an annulment even if the word talaaq is
used, she becomes permissible for him with a new
marriage contract even during the ‘iddah. This view is
more correct. But nevertheless we advise those who
write down the khula' not to use the word talaaq when
recording it, rather they should say "he separated
from his wife by khula' in return for compensation of
such and such value", because most judges in our
country, and I think even in other countries, believe
that if khula' occurs using the word talaaq, it is
counted as talaaq, and this may be detrimental to the
woman, because if it is a final talaaq she will become
irrevocably divorced, and if it is not the final
talaaq it will still be counted against him. End quote
from al-Sharh al-Mumti' (12/450).
Based on this, if you want to go back to your husband,
then it is essential to have a new marriage contract
and no talaaq is counted against you.
And Allaah knows best.