Islamic Fiqh > Marriage and family > Khul' (dissolution by compensation) > The compensation, the formula and conditional khul
Contents
Updated on 24 September 2026 at 7:46 PM
This continuation of the chapter on khul' first deals with khul' before the marriage is consummated, then with the fourth pillar of the khul' contract, the compensation (al-iwad), and its two issues: the unknown compensation and the compensation that lacks value. There follow the fifth pillar, the formula (as-sigha), and finally the question of suspending the khul' upon a condition and attaching it to a term, with the positions of the four schools and the classical references.
The Shafi'is, according to the preferred view, hold that the khul' of a woman already repudiated by a revocable divorce is not valid, because ownership has gone and there is no longer any need for ransom; the separation then takes place in a revocable manner, as in the divorce pronounced by the spendthrift. It is also said: her khul' is valid with the third repudiation and not with the second, thereby producing the major separation (Rawdat al-Talibin, 5/251; al-Najm al-Wahhaj, 7/438; Asna al-Matalib, 3/248; Mughni al-Muhtaj, 4/433; Tuhfat al-Muhtaj, 9/243).
Khul' before consummation: the jurists differ over the case of a husband who makes khul' with his wife before consummating the marriage: is the mahr split in half or does it fall away entirely?
The Shafi'is and the Hanbalis hold that any separation coming from the husband, such as khul' before consummation, makes due half of the specified mahr, by the word of Allah:
"If you divorce them before you have touched them, and you have already appointed for them an obligation, then half of what you appointed is due to them."
Surah Al-Baqarah, 229
The analogy was extended to everything over which the husband has exclusive control, for it shares the same meaning. The mahr is split by khul' only because the husband's side predominates in it, the proof being that the khul' is valid whether performed by her or by another, so that the husband is like one who holds it exclusively (al-Hawi al-Kabir, 9/521, 523; al-Muhadhdhab, 2/59; al-Bayan, 9/434, 439; Rawdat al-Talibin, 5/149, 179; Kifayat al-akhyar, p. 425; al-Najm al-Wahhaj, 7/341; Mughni al-Muhtaj, 4/383-384).
The Shafi'is specify that the dower is split in two by divorce and khul' before consummation, even if the woman has the choice: for example, if the husband delegated the divorce to her and she repudiated herself, or if he suspended the divorce upon her act and she performed it, as if he had suspended her divorce upon her entering the house and she entered. If he makes khul' before consummation for something other than the dower, he takes the amount agreed upon and she receives half of the dower. If he makes khul' against her own dower, he has dealt with his property and with hers, since half of the dower returns to him through the khul'; the separation takes place and the specification of the mahr is voided in both shares, and the husband has an option if he was ignorant of this splitting: if he annuls it, he owes her the dower of the like (mahr al-mithl) according to the preferred view, or according to the other view the specified amount as replacement, the like if it is a comparable value or its value; if he confirms it, he owes her half of the dower of the like according to the preferred view, or the equivalent of half of the dower or its value.
The Hanbalis likewise said that separation coming from the husband, such as khul' before consummation, makes due half of the specified mahr, by the same verse, and they extended the analogy to everything over which the husband has exclusive control, for the same reason: the husband's side predominates in the khul', since it is valid whether performed by her or by another.
If the husband makes khul' before consummation against half of her dower, this is valid, and the entire dower becomes his: half by divorce and half by khul' as compensation. If he makes khul' before consummation against the like of half of the dower owed by her, while she has not yet received the dower, this is valid and the entire dower falls away: half by divorce and half by compensation, wherever it is found with its conditions.
If the woman says to her husband before consummation and before receiving the dower: "Make khul' with me against what is handed over to me of my dower," or "Make khul' with me on condition that I renounce all right over the dower," and he does so by dealing on those terms, the khul' is valid: this amounts to her asking for khul' against half of the dower, and the husband is absolved of the whole of it, half by the khul' and half because she made it compensation for him. If he makes khul' before consummation against the like of the entire dower owed by her, or against her whole dower, the khul' is valid, since it proceeds from her side in its proper place; he recovers from her half, and the dower falls away.
If the husband grants her the choice and she chooses for herself, or delegates the divorce to her and she repudiates herself, it is like his own divorce: her mahr does not fall away, for although the woman directly performed the divorce, she acts in the husband's place as his agent, and the act of the agent is like the act of the principal, so that everything proceeds as if the divorce came from him directly. And if he suspended her divorce upon an act from her, her mahr does not fall away: the cause emanates from him and she merely fulfilled his condition, and the ruling is attributed to the author of the cause.
The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said that if the husband suspended her divorce upon an attribute of her act from which she benefits, such as her entering the house of a stranger, and she performed it before consummation, she then has no mahr; Ibn Rajab gave strength to this view.
The Hanafis and the Malikis, in sum and with details within their school, hold that if the woman makes khul' from her husband before consummation, she gets nothing and the dower is not split in half.
The Hanafis say: if she makes khul' before consummation for a thousand while her mahr is a thousand and she has received nothing, the analogy requires that she owe five hundred to the husband, for five hundred of the mahr fell away by divorce before consummation and the woman committed herself to the thousand; half of the thousand falls from her debt by way of compensation, since she retains a claim of five hundred against the husband after the fall of half of the mahr, so that she owes five hundred beyond the thousand, to complete the thousand to which she committed herself. According to istihsan, nothing is due from her, for the husband's aim was the falling away of the entire mahr from his debt, and this has occurred: nothing more is therefore required of her. As for the case where she received the whole mahr, the analogy requires that she return a thousand and five hundred: the thousand as compensation for the khul' and five hundred as half of the mahr for the divorce before consummation. According to istihsan, she returns the thousand only: five hundred as compensation for the khul' and five hundred by the divorce before consummation (al-'Inayah, 5/500; Bada'i' al-sana'i', 2/295).
Al-Kasani (may Allah have mercy on him) said: among the things that cause the entire mahr to fall away is the khul' against the mahr before or after consummation: if the mahr has not been received, it falls from the husband's obligation; if it has been received, she returns it to him; and if he made khul' against property other than the mahr, that property is due from her, and the husband is absolved of every right that became due to her through the marriage, such as the mahr and past maintenance, according to Abu Hanifah, for the khul', although it is a divorce against compensation in our school, carries the meaning of absolution (Bada'i' al-sana'i', 2/295).
Another detail is related by Imam al-Haddad (may Allah have mercy on him) in "al-Jawharah," where he says: his statement "and al-mubarat is like the khul'" is understood thus: that he say "you are absolved of the marriage between us against a thousand" and she accept. His statement "the khul' and the mubarat drop every right of each of the two spouses against the other arising from the marriage, according to Abu Hanifah" refers to the marriage standing at the time of the mubarat; as for a prior marriage, they do not drop its rights. Abu Yusuf said about the mubarat what Abu Hanifah said; as for the khul', it is like a divorce against property: it drops only what they named.
Muhammad said of both that only what they named drops. The form of the question: if she makes khul' against a named thing, goods or a debt, and the mahr is something else and remains in the husband's obligation, whether he consummated or not, what she named is due from her and she has nothing of the mahr against him according to Abu Hanifah; according to the two companions, she may claim the mahr if he consummated, or half of it otherwise. If she had received the mahr and then he makes mubarat or khul' before consummation for something, this is permitted and the mahr remains entirely hers, and neither of the two pursues the other after the khul' or the mubarat for anything of the mahr. Likewise, if she had received half of the mahr, less or more, and then made khul' against named dirhams before consummation: the husband takes what she named, and nothing of the mahr in their hands is owed by one to the other.
In "al-Tatimmah": if he makes khul' against known property without mentioning the mahr and she accepts, does the mahr fall away? This is a point of dispute: according to Abu Hanifah it falls; according to the two it does not, and she may claim it if he consummated, or half of it otherwise. In its commentary: if he makes khul' or mubarat against a slave, a garment or dirhams while the mahr is something else, he has nothing beyond that; if he had already given her the mahr, he takes back nothing from her; if it was before consummation and he gave her nothing of it, she has nothing against him: this is Abu Hanifah's view, which Abu Yusuf followed in the mubarat; as for the khul', he did not follow him in it and said that the khul' does not entail that. Muhammad said of both that it is like a divorce against property: Abu Yusuf is thus with Muhammad in the khul' and with Abu Hanifah in the mubarat.
It is said in "al-Yanabi'": if the khul' is pronounced with the word of khul', the husband is absolved of every right that became due to her through the marriage, such as the mahr, past maintenance and past clothing, but the maintenance of the 'iddah does not fall; and if it is pronounced with the word of mubarat, it is the same according to Abu Hanifah: if she had received her mahr, it is handed over to her, otherwise she has nothing against the husband, whether before or after consummation. Abu Yusuf said: if it is with the word of mubarat, it goes as Abu Hanifah said; if it is with the word of khul', only what they named drops. Muhammad said: only what they named drops, whether with the word of khul' or of mubarat; according to his view, if it was before consummation and she had received her mahr, she owes back half of it; if it was after consummation, the mahr remains hers and he has against her all that she named. They finally agree that a debt between them arising from another cause does not fall away, which the shaykh guarded against by his phrase "of the rights of the marriage" (al-Jawharah al-nirah, 4/524, 527; al-Lubab, 2/120).
The Malikis say: when the adult, sane woman makes khul' from her husband before consummation by saying to him "make khul' with me against such a thing," only one of the following cases applies. Either she says "make khul' with me against such a thing, for instance ten dinars, of my dower": she then has half of what remains after he takes the ten, as if her dower were thirty and she said "make khul' with me against ten of my dower," she has half of what remains, namely ten of twenty. Or she says "make khul' with me against such a thing, ten dinars for instance," without saying "of my dower": she has no half of the dower and is entitled to nothing of the dower, for the word of khul' implies the relinquishment of all her rights against him, and she pays what she dealt for out of her property in addition to the dower; if she had received it, she returns it and pays the mentioned property on top. If she says "divorce me against ten" without saying "of my dower" and he divorces her, she has the whole half and pays only that against which the divorce took place (al-Taj wa-l-iklil, 2/611-612; Sharh Mukhtasar Khalil, 3/289-290; Tathbir al-Mukhtasar, 3/64; al-Sharh al-kabir with Hashiyat al-Dasuqi, 3/181-182).
The compensation (al-iwad) is what the husband takes in return for the khul' he grants his wife. Several issues follow from this. The first: is the presence of a compensation a condition for the validity of the khul'?
The jurists differ: does the khul' require a compensation, or is it valid without one? The Hanafis and the Hanbalis according to the school (and one Shafi'i view) hold that the compensation is a condition of validity and that the khul' is valid only with it, for the compensation is a pillar of it, like the price in a sale; without it there is neither khul' nor divorce, since what is not valid produces nothing, like a corrupted sale. If, however, he utters the word of divorce or intends it, it is a revocable divorce, for the divorce involves no compensation and remains revocable like any other, and because it can serve as an allusive form (kinayah) of divorce: if he did not intend a divorce by it, nothing happens; for if the khul' were a rescission, the husband has the power to rescind the marriage only on account of a defect in her. Likewise, if he says "I rescinded the marriage" without intending divorce, nothing happens; it is only when the compensation enters that it becomes an exchange, and the exchange and the exchanged cannot combine.
The khul' is likewise not valid by the mere handing over of property and its acceptance, without the husband's wording, for it is a disposition over the private part against compensation, which is not valid without wording, no more than marriage and divorce; and because taking the property is a receipt of compensation, which does not stand in the place of the offer, any more than the receipt of one of the two counter-values in a sale.
As for the hadith of Jamilah, to whom the Messenger of Allah (may the prayer and peace of Allah be upon him) said "Will you return his garden to her?", al-Bukhari related it with the wording: "Accept the garden and divorce her with a definitive divorce," which is explicit on taking the wording into account; in a version: "he ordered him and he separated from her." Whoever did not mention the separation confined himself to part of the story; the addition of a trustworthy narrator is accepted, and perhaps the narrator deemed it superfluous to mention the wording after the compensation, since it is known from it. On this basis the statement of Ahmad and other imams is interpreted; likewise, they mentioned no wording nor circumstantial indication from the wife's side, whereas there is consensus that one is required. Indeed, the offer and the acceptance are required in the same session: that he say "I make khul' with you against such a thing" and she reply "I accept" or similar (al-Mughni, 7/257; al-Mubdi', 7/229; al-Insaf, 8/396; Kashshaf al-Qina', 5/248-249; Sharh Muntaha al-iradat, 5/343-344; Matalib uli al-nuhah, 5/299; Manar al-sabil, 3/70, 72).
The Hanafis say: the khul' against property effects a definitive separation, whether or not he intended divorce, for the mention of property in exchange for the khul' necessarily makes the exit from the marriage intended: intention is no longer needed. As for the khul' against something other than property, if he intends divorce by it, it occurs, otherwise not, for it is an allusive form among those of divorce. As soon as property is given, the property dispenses with intention, for she hands over the property only so that she herself be freed, which is obtained through the separation (Bada'i' al-sana'i', 3/151; al-Bahr al-ra'iq, 4/206; al-Jawharah al-nirah, 4/515; al-Lubab, 2/116).
The Malikis according to the well-known view, the Shafi'is according to one view and the Hanbalis according to one view hold that the khul' is valid without compensation.
Imam Ibn Qudamah (may Allah have mercy on him) relates a question of his choice: if he makes khul' without compensation, it is a khul' and he is entitled to nothing.
The narrations from Ahmad differ on this question. His son Abdallah related from him: I said to my father: a man's wife says to him "make khul' with me," and he answers "I have made khul' with you." He said: he may marry her with a new marriage contract, she being with him as it were counted twice; and the apparent meaning of this is the validity of the khul' without compensation: it is Malik's view, for it is a breaking of the marriage valid without compensation like the divorce; and because the origin of the prescription of the khul' is that the woman feels aversion toward her husband and the need to part from him, so that she asks him for the separation; when he grants it, the purpose of the khul' is attained, and it is valid as if there were compensation. Abu Bakr said: there is no disagreement, on the authority of Abu Abdillah (Ahmad), that the khul' comes from the women's side; when it comes from the men's side, there is no dispute that it is a divorce opening the right of return, not a rescission.
The second narration: the khul' takes place only against compensation. Muhannā related: if he says to her "make khul' of yourself" and she says "I have made khul' of myself," it is a khul' only against something, unless he intends divorce by it and then obtains what he intended. According to this narration, the khul' is valid only with compensation: if he pronounces it without compensation while intending divorce, it is a revocable divorce, for it can serve as an allusive form of divorce; if he does not intend divorce by it, nothing happens: this is the view of Abu Hanifah and al-Shafi'i, for if the khul' were a rescission, the husband has the power to rescind the marriage only on account of a defect in her; likewise, if he says "I rescinded the marriage" without intending divorce, nothing occurs, unlike the case where the compensation enters: it becomes an exchange, and the exchange and the exchanged cannot combine. And if one says "the khul' is a divorce," it is not explicit in any way, it is an allusion, and the divorce occurs by an allusion only with intention or with the handing over of the compensation standing in place of intention, and neither of the two was found here. And if the divorce does occur: lacking compensation, it does not entail definitive separation, unless the three divorces are completed (al-Mughni, 7/257; Sharh al-Zarkashi, 2/454).
Imam Ibn Abd al-Barr (may Allah have mercy on him) said: if one intends to effect the khul' without compensation, it is a khul' according to Malik and the divorce is definitive. It was related from him that he said: it is definitive only with compensation, and this is the sounder of his two views in my estimation and in that of the people of knowledge and scrutiny (al-Kafi, 1/276).
Imam al-Qurtubi (may Allah have mercy on him) said: Malik's view diverged concerning one who intends to effect the khul' without compensation. Abd al-Wahhab said: it is a khul' according to Malik and the divorce is definitive. It was also related from him that it is definitive only with compensation, which Ashhab and al-Shafi'i said, for it is a divorce devoid of compensation and of completion of the count, hence revocable, as if pronounced with the word of divorce. Ibn Abd al-Barr said: this is the sounder of his two views in my estimation and in that of the people of knowledge in scrutiny. The basis of the first view is that the absence of compensation does not remove the khul' from its purport, for instance the khul' against wine or pork (Tafsir al-Qurtubi, 3/145; see al-Taj wa-l-iklil, 3/21; Sharh Mukhtasar Khalil, 4/15).
The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said: may the husband make his wife definitive without compensation? There are three views. The first: he may not make her definitive except with compensation, and if he divorces her after consummation without compensation, it is revocable: this is the school of al-Shafi'i, one of the two views of the Maliki school and one of the two narrations from Imam Ahmad. The second: he makes her definitive without compensation absolutely, whether or not she consents: this is the school of Abu Hanifah and a narration from Imam Ahmad. The third: he may make her definitive without compensation in some cases and not in others: if she chooses separation without compensation, he may make her definitive; the khul' is valid without compensation and produces separation, whether as a divorce or as a rescission according to one of the two views: this is the well-known Maliki school in the narration of Ibn al-Qasim, and the other narration from Imam Ahmad, chosen by al-Khiraqi. This third view has two bases: the first, the return (al-raj'ah) is a right of both spouses, and when they agree to drop it, it is dropped; the second, it is a separation with compensation, for she consents to waive maintenance and lodging, and he consents to waive her return; just as he may make the compensation the dropping of rights established for her, such as a debt, he may make it the dropping of what was established for the two of them by divorce, such as the child's maintenance: this is a strong view, included in maintenance chargeable to another (al-Ikhtiyarat, p. 362; al-Fatawa al-kubra, 4/566).
Imam al-Imrani (may Allah have mercy on him) said: if he says "I have made khul' with you" and she says "I accept" without mentioning the compensation: if we say the khul' is a divorce, and he intends one by it, it occurs revocably and she owes him nothing, since she committed herself to no compensation; if we say the khul' is a rescission, there are two aspects: the first, it is nothing, since he mentioned no property; the second, it is a corrupted khul', and the dower of the like is due from her, for the explicit word of khul' was indeed pronounced. The same applies if he says "I sold you this slave" and he answers "I accept" without mentioning the price, and the buyer takes possession: two aspects, it is not a sale and the property is then a deposit entrusted in the buyer's hand, or it is a corrupted sale and he is liable for it upon taking possession (al-Bayan, 10/19).
Imam al-Nawawi (may Allah have mercy on him) said: does the absolute khul', pronounced without mention of property, entail the establishment of property? There are two aspects, the sounder of the two according to the Imam (al-Shafi'i), al-Ghazali and al-Ruyani being yes, by custom, like the khul' against wine; the second being no, for lack of commitment. If we establish the property: if we deem the statement a rescission, or explicit of divorce, or an allusive form with intention, the dower of the like is due and separation occurs; if it is an allusive form without intention, no. If the property is not established at the moment of the divorce: if we deem the statement a rescission, no, for rescission by mutual consent occurs only with compensation, as the Imam and others related from the companions, whose tendency was that if the compensation were negated, the khul' would not be valid according to the rescission view. The Imam said: the true analogy is its validity without compensation (al-Bayan, 10/19).
If we deem the statement a divorce, explicit or allusive with intention, it is a revocable divorce. There are two aspects on the requirement of the woman's acceptance: the sounder is that it is not required, so validated by the Imam (al-Shafi'i) and settled decisively by al-Baghawi, the husband alone holding power over the revocable divorce. The two aspects concern the case where he says "I have made khul' with you" implying that he seeks her answer and awaiting her acceptance; but if he says "I made khul' of myself" or "I made khul' with you" without implying the seeking of an answer, no answer is required at all, as if he said "I separated from you." If he intended property without mentioning it, and we say that the absolute form does not entail property: does intention establish the property? There are two aspects, by analogy with the sale contract concluded through allusive forms. If we say it establishes it, the property is established, and her intention is required as well; if we say it does not, does the divorce occur with the property annulled, or does it not occur because he intended divorce against property and not absolutely? There are two aspects. In the "Fatawa al-Baghawi" there are two aspects on the case where she makes khul' of herself against the remainder of her dower and he deals on that basis while nothing remains owed to her: does separation occur with the dower of the like? Obtaining it was given preference (Rawdat al-Talibin, 5/239-240).
The second issue: the amount of the khul'. The people of knowledge agree that when the woman makes khul' from her husband against the amount of what he gave her as dower, while he has caused her no harm, the khul' is permitted.
Imam Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars agree on the permissibility of the khul' against the dower he gave her, if it is not harmful to her and both fear not upholding the limits of Allah (al-Tamhid, 23/368). But it befits the Muslim to take less than the mahr, so that intimacy not be devoid of payment (Majma' al-anhar, 2/102).
The jurists nevertheless differ over the khul' against more than her mahr: is it permitted absolutely, without disapproval? permitted with disapproval? or forbidden, the excess having to be returned? The majority of jurists, the Hanafis according to one view, the Malikis, Shafi'is and Hanbalis according to the school, hold that the khul' against little or much property, against more than the dower, or against her entire wealth, is permitted when it comes from her, by the word of Allah:
"No blame is there upon the two of them for that by which she ransoms herself."
Surah Al-Baqarah, 229
the verse being general; and because the compensation is a counter-value whose transfer of ownership is valid, the khul' against it is therefore permitted as against the dower.
Imam Malik (may Allah have mercy on him) said: I have constantly heard the permission of the ransom against more than the dower, but it is not among the noble traits of character, and I have seen no one among the people of knowledge disapprove of it. If the recalcitrance comes from her, it is permitted for the husband to take what he took from her by khul', even more than the dower, if she consents and it does her no harm; if it is for fear of his harm, of an injustice done to her, or of damage, it is not permitted for him to take it, and if he took something on that basis, he returns it and the khul' stands (al-Tamhid, 5/341, 23/368; al-Ishraf 'ala nukat masa'il al-khilaf, 3/379-380, no. 1209; Tafsir al-Qurtubi, 3/141; al-Ifsah, 2/163).
The Shafi'is say: the khul' is valid with the specified mahr, with less, or with more, by "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229) without distinction, and because it is a counter-value acquired by contract, which is not quantified like the mahr and the price; it is valid against a debt, a commodity or a usufruct, as with the mahr (al-Bayan, 10/10; Rawdat al-Talibin, 5/252; al-Najm al-Wahhaj, 7/439; Mughni al-Muhtaj, 4/433-434).
Imam Ibn Qudamah (may Allah have mercy on him) relates a question of his choice: it is not recommended for the husband to take more than he gave her. This statement indicates the validity of the khul' against more than the dower, and that when the two spouses agree upon the khul' against something, it is valid: it is the view of most of the people of knowledge, related from Uthman, Ibn Umar, Ibn Abbas, Ikrimah, Mujahid, Qabisa ibn Dhu'ayb, al-Nakha'i, Malik, al-Shafi'i and the people of opinion. It is related from Ibn Abbas and Ibn Umar that they said: if a woman were to make khul' from her husband against her inheritance and her braids, that would be permitted. 'Ata, Tawus, al-Zuhri and Amr ibn Shu'ayb said that he does not take more than he gave her; this was related from Ali with an interrupted chain, and Abu Bakr chose it, saying that if he did so, he would return the excess. Sa'id ibn al-Musayyib said: I do not see that he should take all her wealth, but that he leave her something.
They argued with what is related of Jamilah bint Salul, who came to the Prophet (may the prayer and peace of Allah be upon him) and said:
By Allah, I find no fault with Thabit, neither in his religion nor in his character, but I hate disbelief within Islam, and I cannot bear it out of aversion. The Prophet said: Will you return his garden to her? She said: Yes. The Prophet then ordered him to take back from her his garden and nothing more.Related by Ibn Majah (2056), authentic hadith
And because the compensation is a counter-value given in exchange for a rescission, he does not exceed its measure, as at the origin of the contract, like the compensation in the mutual rescission (iqalah). Our proof [the Hanbali one] is the word of Allah "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229), and the statement of those we have named among the Companions. al-Rabi' bint Mu'awwidh said: "I made khul' from my husband against less than my braids, and Uthman ibn Affan (may Allah be pleased with him) permitted it"; such a thing spread without being disapproved, which amounts to consensus, whereas the contrary was not established as authentic from Ali. This being established, it is not recommended for the husband to take more than he gave her, as said by Sa'id ibn al-Musayyib, al-Hasan, al-Sha'bi, al-Hakam, Hammad, Ishaq and Abu Ubayd: if he does so, it is permitted with disapproval, whereas Abu Hanifah, Malik and al-Shafi'i did not disapprove of it. Malik said: I have constantly heard the permission of the ransom against more than the dower. Our proof is the hadith of Jamilah, and it is related from 'Ata, from the Prophet (may the prayer and peace of Allah be upon him), that he disapproved of taking from the woman who makes khul' more than he gave her, related by Abu Hafs with his chain, a statement explicit on the ruling. We therefore combine the verse and the report, saying: the verse indicates permission, and the prohibition of the excess indicates disapproval, and Allah knows best (al-Mughni, 7/247; al-Kafi, 3/152; Sharh al-Zarkashi, 25/451; al-Mubdi', 7/230; al-Insaf, 8/398; Manar al-sabil, 3/72).
The Hanafis and Imam Ahmad, according to a narration chosen by Abu Bakr, hold that he may not take more than he gave her, by the hadith of Ibn Abbas (may Allah be pleased with them), which is the version of the account of Jamilah cited above (related by Ibn Majah, 2056).
'Ata related that a woman came complaining of her husband to the Prophet (may the prayer and peace of Allah be upon him):
He said: Will you return his garden to her? She said: Yes, and more. He said: As for the excess, no.Related by Abu Dawud in al-Marasil (235) and al-Bayhaqi in as-Sunan al-Kubra (14621)
Al-Daraqutni related from Abu al-Zubayr that Thabit ibn Qays ibn Shammās had as wife Zaynab bint Abdallah ibn Ubayy ibn Salul, and had given her a garden as dower which she disliked. The Prophet (may the prayer and peace of Allah be upon him) said:
Will you return to her the garden he gave you? She said: Yes, and more. The Prophet said: As for the excess, no, but his garden. She said: Yes. He took it from her and let her go. When this reached Thabit ibn Qays, he said: I have accepted the judgment of the Messenger of Allah.Related by al-Daraqutni in his Sunan (3629)
Al-Daraqutni said that Abu al-Zubayr had heard it from more than one; al-Hafiz Ibn Hajar (may Allah have mercy on him) writes in "Fath al-Bari" (9/402) that the men of its chain are trustworthy, and that if a Companion is among them the hadith is authentic, otherwise it is supported by what precedes. And because the compensation is a counter-value given in exchange for a rescission, he does not exceed its measure, as at the origin of the contract, like the compensation in the mutual rescission (al-Mughni, 7/247; al-Kafi, 3/152; Sharh al-Zarkashi, 25/451; al-Mubdi', 7/230; al-Insaf, 8/398; Manar al-sabil, 3/72).
The Hanafis say: when the recalcitrance comes from the husband, he is disapproved for taking from her little or much, by the word of Allah:
"If you wish to replace one wife with another and you have given one of them a quintal, take nothing back from it."
Surah An-Nisa, 20
Allah forbade taking back anything of the dower given to the wife, and He reinforced the prohibition with:
"Would you take it back by way of slander and manifest sin?"
Surah An-Nisa, 20
as well as with:
"And do not press them so as to take back part of what you gave them, unless they commit a manifest indecency."
Surah An-Nisa, 19
Husbands are forbidden to take back anything of what they gave them, their recalcitrance being excepted; the ruling of the excepted contradicts that of the excepted-from, which implies the prohibition of taking back anything of what was given them in the absence of recalcitrance. This belongs to the religious ruling: if he took, the act is valid at the level of the ruling and stands, without his being able to claim it back, for the husband relinquished his ownership against a compensation she accepted, the husband being among those who may relinquish and the woman among those who exchange and consent; the act is therefore valid at the level of the ruling and of the court.
If the recalcitrance comes from her, or both fear her bad character or the hatred of each for the other, he may take what he gave her, without adding to it, and he is disapproved for taking more, by what Abu Dawud related in "al-Marasil" from 'Ata: a woman came complaining of her husband to the Prophet; he said "Will you return his garden to her?", she said "Yes, and more," he said "As for the excess, no"; and because he owes her nothing: he merely lifts the contract, so that he may take from her the measure of what he transferred to her by the contract, and he may not add to it. But it befits the Muslim to take less than the mahr, so that intimacy not be devoid of payment (Majma' al-anhar, 2/102).
As for the word of Allah: "If they willingly give up to you any part of what you appointed, then enjoy it freely and pleasantly" (Surah An-Nisa, 4), it concerns a case other than the khul', namely her waiving the mahr of her own accord; and the statement of the one who says that, since the husband may take her property without khul' with her consent, it is permitted in the khul', is an error: Allah legislated both cases, prohibiting in the one, by "If you wish to replace one wife with another" (Surah An-Nisa, 20) and "It is not lawful for you to take back anything of what you gave them, unless the two fear not upholding the limits of Allah" (Surah Al-Baqarah, 229), and permitting in the other by "If they willingly give up to you..." (Surah An-Nisa, 4).
Abu Bakr al-Jassas (may Allah have mercy on him) said that the statement of the one who argues thus contradicts the text of the Book. The following account is related of the Prophet (may the prayer and peace of Allah be upon him) concerning the khul':
Habibah bint Sahl al-Ansariyyah was the wife of Thabit ibn Qays ibn Shammās. The Messenger of Allah (may the prayer and peace of Allah be upon him) went out at daybreak and found Habibah bint Sahl at his door in the early dawn. He said: Who is this? She said: I am Habibah bint Sahl. He said: What is your matter? She said: There is nothing left between me and Thabit ibn Qays, my husband. When Thabit ibn Qays came, he said to him: This is Habibah bint Sahl; she mentioned what Allah willed her to mention. Habibah said: Everything he gave me is here. The Messenger of Allah said to Thabit: Take it back from her. He took it from her and she settled among her family.Related by Malik in his chain, with the chain cited by al-Jassas in Ahkam al-Qur'an (2/91, 93)
Various wordings are related: in one "let her go," in another "separate from her." And it was said that he cannot take from her more than he gave her, by what Abd al-Baqi ibn Qani' related: a man was in dispute with his wife before the Prophet; the Prophet said "Will you return to him what you took from him?", she said "Yes, and more," the Prophet said "As for the excess, no." Our companions [the Hanbalis] say he takes no excess by this report, and they specified it against the apparent meaning of the verse (Ahkam al-Qur'an of al-Jassas, 2/91, 93).
In a narration related in "al-Jami' as-saghir," there is no harm in taking the excess, by what is related:
A recalcitrant woman was brought to Umar (may Allah be pleased with him), who confined her for three days in a dunghill, then summoned her and said: How did you find your bed? She said: No nights seemed sweeter to my eye than these, for I did not see him. Umar said: Is recalcitrance anything but this? Make khul' with her, even for her earring.Related in al-Jami' as-saghir
From Ibn Umar (may Allah be pleased with him): "A freedwoman made khul' with everything she possessed, and no fault was found with her for it." And from Ibn Abbas (may Allah be pleased with them): "If she were to make khul' with everything she possessed, I would permit it." This is because the taking of property here occurs by way of deterring her from recalcitrance; that is why it is not permitted when the recalcitrance comes from the husband, and it is not restricted to the dower he transferred to her. As for the level of the ruling, the khul' is valid and the property is due (al-Mabsut, 6/183).
Imam al-Kasani (may Allah have mercy on him) said: to know what it is permitted for the husband to take as compensation and what is not, in sum: the recalcitrance comes either from the husband or from the woman. If it comes from the husband, he may not take anything of the compensation from the one making khul', by the verses "If you wish to replace one wife with another and you have given one of them a quintal, take nothing back from it" (Surah An-Nisa, 20), "Would you take it back by way of slander and manifest sin?" (Surah An-Nisa, 20) and "And do not press them so as to take back part of what you gave them, unless they commit a manifest indecency" (Surah An-Nisa, 19): husbands are forbidden to take back anything of what they gave them, their recalcitrance being excepted; the ruling of the excepted contradicts that of the excepted-from, which implies the prohibition in the absence of recalcitrance. This belongs to the religious ruling: if he took, the act is valid at the level of the ruling and stands without possibility of reclaiming it, for the reasons already given. If the recalcitrance comes from her, nothing prevents his taking from her the measure of the mahr, by "unless they commit a manifest indecency" (Surah An-Nisa, 19), that is, unless they rebel, the exception to the prohibition amounting to permission apparently; and by "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229), concerning which it was said that no blame falls on the husband in the taking nor on the woman in the giving.
As for the excess over the measure of the mahr, there are two narrations: it is mentioned in the book of divorce that it is disapproved; it is likewise related from Ali (may Allah be pleased with him) that he disapproved of the husband's taking from her more than he gave her, this being the view of al-Hasan al-Basri, Sa'id ibn al-Musayyib, Sa'id ibn Jubayr and Tawus. But in "al-Jami' as-saghir" it is mentioned that it is not disapproved: this is the view of Uthman al-Batti, and al-Shafi'i adopted it. The basis of this latter narration is the apparent meaning of "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229), which lifts the blame from the two of them, in the taking and in the giving, for the ransom, without distinction between the dower of the like and the excess over it, so that one must act upon the generality of the text; and because she gave her property of her own accord, Allah having said: "If they willingly give up to you any part of what you appointed, then enjoy it freely" (Surah An-Nisa, 4). This in contrast to the case where the recalcitrance comes from him: in that case she is compelled to hand over the property, for it appears that with her aversion to the husband she gives only when compelled from his side by devices, or deceived by forms of trickery and forgery, so that the taking was disapproved.
The basis of the first narration is the word of Allah: "It is not lawful for you to take back anything of what you gave them, unless the two fear not upholding the limits of Allah" up to "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229): He forbade taking back anything of the dower he gave her, and excepted the amount given as dower in the case of their fear of not upholding the limits of Allah; now the prohibition of taking anything of the dower entails, a fortiori, the prohibition of the excess over the dower, like the prohibition of the lesser obscurity which entails that of what exceeds it.
It is related that when the Messenger of Allah (may the prayer and peace of Allah be upon him) said to the wife of Thabit ibn Qays ibn Shammās "Will you return his garden to her?", and she said "Yes, and more," and he said "As for the excess, no," he forbade the excess even though the recalcitrance came from her; and from this it is known that "for that by which she ransoms herself" (Surah Al-Baqarah, 229) means the measure of the mahr, not the excess over it, although its apparent meaning is general: we know it by the Prophet's explanation (may the prayer and peace of Allah be upon him), which is a revelation not recited. Proof further lies in the word of Allah at the beginning of the verse: "It is not lawful for you to take back anything of what you gave them" (Surah Al-Baqarah, 229): He mentioned at the beginning of the verse what he gave her, so that what is mentioned at the end, "for that by which she ransoms herself," refers back to the beginning; the expression therefore means what he gave her, and on this basis we say that he may take only the measure of what he gave her.
As for the objection that she gave him her property of her own accord, it is true, but it is a proof of permission, by which we say that the excess is valid at the level of the ruling and of the court; and because the khul' from her side is an exchange in place of the divorce, and the relinquishment of her ownership and the handing over of property in return for a thing that is not property is valid at the level of the ruling when it is desirable. Does one not see that manumission is permitted against little or much property, and the taking of property in exchange for the relinquishment of ownership and slavery; likewise the amicable settlement over intentional bloodshed; likewise marriage, permitted against more than the dower of the like although it is the counter-value of the private part, so that the woman may guarantee the khul' against more than the dower of the like, the counter-value being the integrity of the private part in both cases; only, He forbade the excess over the measure of the mahr not for a defect in the contract itself, but its basis lies elsewhere.
The jurists differ over the case where the compensation of the khul' is unknown, for instance if she says "Make khul' with me against what is in my hand of dirhams," while he does not know what is in her hand: is the khul' valid? The majority of jurists, the Hanafis, Malikis and Hanbalis according to the school, hold that the khul' is valid even if the compensation handed over is unknown, for instance if she deals with him against what is in her hand of dirhams, and he takes what was allocated to him. For divorce is a meaning that may be suspended upon a condition, so it is permitted for an unknown compensation to arise by it, like a testamentary bequest; and because the khul' is the relinquishment of his right over the private part, without transfer of ownership, and relinquishment admits gratuity, which is why it is valid without compensation, unlike marriage. The khul' being valid, the dower of the like is not due, for she did not hand it over nor cause the husband the loss that would require it: the exit of the private part from the husband's ownership has no value, the proof being that if she removes it from his ownership by her apostasy or her suckling that annuls her marriage, nothing falls upon her; if she killed herself or a stranger killed her, no compensation is due to the husband, whether she was able or not; the private part is valued for the husband only in marriage specifically, and He permitted her the ransom of herself for her need, so that what is due is what she consented to hand over: compelling what she did not consent to has no basis. On this basis, if he makes khul' against what is in her hand of dirhams, it is valid, and what is in her hand of dirhams is his.
The Hanbalis say: if there is nothing in her hand, three [dirhams] are due to him from her; Ahmad stated it, for it is the smallest number bearing the name of dirhams literally, and her wording indicated it, so that he becomes its creditor, as if dirhams were bequeathed to him by will. If there is less than three in her hand, it is possible he is entitled only to that, for it belongs to the dirhams and is in her hand, and it is possible he is entitled to three full, the wording requiring them when nothing is found in her hand; the same applies when there is some in her hand (al-Mughni, 7/253).
The Hanafis say: if she says "Make khul' with me against what is in my hand," he deals with her and there is nothing in her hand: he has nothing against her, for she did not deceive him, having named no property of value. Likewise if she says "against what is in my house" while her house is empty: the khul' is valid and he has nothing. If she says "Make khul' with me against what is in my hand of property," he deals with her and there is nothing in her hand: she returns his mahr to him, for having named property, he was not willing to part with it without compensation; and there is no way to impose upon her the named amount or its value, because of the indeterminacy, nor the value of the private part, that is, the dower of the like, because it is not valued at the moment of exit; what stands in place for the husband therefore becomes necessary, namely the restitution of the mahr. When the restitution of the mahr is due to him and she has absolved him of it, he takes back nothing from her, for the very thing he is entitled to claim was handed over to him by the absolution; were he to return to her, it would be as a gift, and a gift imposes no warranty upon the giver.
If she says "against what is in my hand of dirhams" in the plural, he deals with her and there is nothing in her hand: three dirhams are due to him, for she named the plural whose least is three; if dirhams of three and above are found in her hand, they belong to the husband; if there are fewer than three in her hand, three are due to him. If the khul' takes place against the mahr, it is valid: if the woman has not received it, it falls from his obligation; if she has received it, he takes it back from her. And if he makes khul' against the maintenance of her 'iddah, the khul' is valid and the maintenance falls (al-Hidayah, 2/15; Tabyin al-haqa'iq, 2/269; al-'Inayah, 5/476-477; al-Jawharah al-nirah, 4/520-522; al-Lubab, 2/118-119).
The Malikis say: the validity of the khul' does not require that it be free of uncertainty and indeterminacy; if he deals against an indeterminate thing, the khul' is valid and the divorce occurs, for the khul' does not belong to pure exchanges, like sales in which prices are sought: what is sought here is that the wife free herself from the husband and become owner of herself again, and the marriage dissolves. If the husband says to his wife: "If you hand over to me what is in your hand, you are divorced," while he has possession of it, and she opens it: if there is in it a trifling thing having value, however slight, such as a dirham; or a thing without value, such as a rag, a raisin or a grain; or nothing having value, there being nothing at all, the hand being empty, or a thing without value such as dust: she is thereby separated from him, for he entered into uncertainty, having divorced against a thing he will or will not take. Ibn Abd as-Salam said it is the nearest view.
But if she makes the khul' against a thing over which she has no right, the khul' does not bind him: for example, the woman says to her husband "Make khul' with me against this animal" while pointing to it, and he deals with her on that basis; the animal is not hers and she has neither ownership nor semblance of ownership over it, so the khul' does not bind him, for he dealt against a thing that was not completed for him, and the apparent meaning is non-bindingness, even with the owner's permission.
Or against a trifling thing: if he says to his wife "If you give me that against which I make khul' with you, you are divorced, or I have made khul' with you": if she brings him the dower of the like, the khul' binds him; if she brings him less than the dower of the like, which is the meaning of the trifling thing, the khul' does not bind him and they are separated, and according to the narration no oath falls upon him ('Iqd al-jawahir al-thaminah, 2/498; al-Ishraf 'ala nukat masa'il al-khilaf, 3/392-393, no. 1221; al-Taj wa-l-iklil, 3/34; Sharh Mukhtasar Khalil, 4/26; al-Sharh al-kabir with Hashiyat al-Dasuqi, 3/237; Tathbir al-Mukhtasar, 3/126-127).
The Shafi'is hold that the compensation requires the conditions of the price: that it have value, be known and be deliverable. On this basis, if he makes khul' against an unknown thing, such as a cloth without designation or description, or like one of the two slaves, or against a known thing accompanied by an unknown, or against what is in her palm while there is nothing in it and he knows it, or against a usurped thing or known wine, the two spouses being Muslims, or against any other corrupted thing intended: she is separated with the dower of the like, for it is a contract upon the benefit of the private part, which is not corrupted by the corruption of its counter-value and returns to its counterpart, like marriage. According to one view, he returns against the equivalent of the wine, that is, its measure of juice (Rawdat al-Talibin, 5/252-253; al-Najm al-Wahhaj, 7/440-441; Mughni al-Muhtaj, 4/434; Nihayat al-Muhtaj, 6/462-463).
Imam Ibn Rushd (may Allah have mercy on him) said: the cause of the dispute is the oscillation of the compensation here between compensation in sales or in things given as gift and bequeathed. Whoever likened it to sales required in it what is required in sales and their counter-values, and whoever likened it to gifts did not require it (Bidayat al-mujtahid, 2/51).
The jurists differ over the case where the compensation of the khul' lacks value, such as wine or pork, the two spouses being Muslims: is a counter-value due or not, after their agreement that the divorce occurs? The Shafi'is hold that the compensation requires the conditions of the price: value, being known, and deliverability: if he deals against known wine, the two being Muslims, or against any other corrupted thing intended, she is separated with the dower of the like, for it is a contract upon the benefit of the private part which is not corrupted by the corruption of its counter-value and returns to its counterpart like marriage. According to one view, he returns against the equivalent of the wine, its measure of juice (Rawdat al-Talibin, 5/252-253; al-Najm al-Wahhaj, 7/440-441; Mughni al-Muhtaj, 4/434; Nihayat al-Muhtaj, 6/462-463).
The majority of jurists, the Hanafis, Malikis and Hanbalis, hold that when the compensation of the khul' is void, as if he deals against wine, pork, carrion or a free man, the husband is entitled to nothing, for the exit of the private part from the husband's ownership has no value: if he is content with what is not a compensation, he is entitled to nothing, as if he had divorced her or suspended her divorce upon her performing an act and she performed it, and he separates from the marriage, the entry of the private part into the husband's ownership having, for its part, value.
They differ only as to whether the separation occurs in a revocable manner, definitively, or according to intention. The Hanafis say: when the compensation of the khul' is void, for instance if she deals with her husband against wine, pork or carrion, the husband is entitled to nothing, the named compensation being void, and the separation is definitive; nothing is due from her to him because she named no property having value that would become deception against him, and there is no way to impose upon her the named thing, the Muslim refusing to deliver it and to receive it, nor to impose another, for lack of commitment. This in contrast to the case where he deals against a specified vinegar that turns out to be wine: it is then obligatory upon him to return to her the mahr she took according to Abu Hanifah, and according to the two companions an equivalent measure of that vinegar is due; and this is the same for the dower as here, for she named property and deceived him, thereby becoming liable, deception within the contract entailing warranty.
If the compensation of the divorce is void, the divorce is revocable so long as the count is not completed, and becomes definitive if it is completed, the explicit divorce devoid of compensation and not described as separation being revocable. When the compensation lacks value, such as wine, pork or carrion: if the statement is pronounced with the word of khul', the separation is definitive; if with the word of divorce, it is revocable if the marriage was consummated and fewer than three have occurred, the effecting being suspended upon the acceptance which took place, and the compensation being void: the operative factor in the first case is the word of khul', which is an allusive form whose effect is definitive, and in the second the word of divorce, which is followed by return (al-Hidayah, 2/14; Tabyin al-haqa'iq, 2/269; al-'Inayah, 5/473; al-Ikhtiyar, 3/193-194; Mukhtasar al-Wiqayah, 1/413; Sharh Fath al-Qadir, 4/219-220; al-Jawharah al-nirah, 4/520-522; al-Lubab, 2/117-118).
The Malikis say: when the husband makes khul' of his wife against what cannot be a compensation, such as wine or pork, the definitive divorce occurs and he is entitled to no counter-value, for divorce is a meaning that can occur without consideration, producing its effect by its mere occurrence without any rescission being possible; if it occurs against what cannot be consideration, he obtains by it no consideration, its origin being manumission, as if one said to his slave "If you bring me a skin of wine, you are free," and he brings it: he is freed and obtains no consideration. And because the dower of the like is a measure upon which consent did not occur in the khul', it does not bind by the corruption of the compensation, its origin being what exceeds the dower of the like; and because every meaning not due in the khul' despite the validity of the compensation is not due with its corruption, its origin being the specified mahr; and because the establishment of the counter-value in the khul' involves no right of Allah, the proof being the permission to agree upon its relinquishment: once the contract is valid with his consent without known counter-value, it is as if he had divorced without compensation. And because the obligation of the dower of the like can only be as compensation for the compensation or as compensation for the exit of the private part: it cannot be compensation for the compensation, for every subsisting counter-value has as its value its price, and the dower of the like is not the value of the wine; if it is compensation for the loss of the private part, it is not valid, for the exit of the private part from the husband's ownership has no value: the entire question rests on this point. Indeed, that by which he destroys it is the lawfulness of enjoying it, and that lawfulness is not valued at its equivalent, like the sick man who divorces: the private part is not valued against her for the third divorce, and if it had a value, it would be valued, as if property of his had been given to her. And because if she apostatized after consummation, nothing would be due to him, whereas if the exit of the private part from his ownership had a value, she would owe it as she owes the value of what she consumed. And because her killer owes the husband no value of the private part, whereas if it had one, he would owe it like other property ('Iqd al-jawahir al-thaminah, 2/498; al-Ishraf 'ala nukat masa'il al-khilaf, 3/388-389, no. 1217; Bidayat al-mujtahid, 2/51).
The Hanbalis say: if the khul' is pronounced with the word of divorce, it is a revocable divorce, being devoid of compensation; if with the word of khul' or the allusive forms of khul' while intending divorce, it is the same, the allusive forms with intention being like the explicit. If it is with the word of khul' without intending divorce, it depends on a principle: is the khul' valid without compensation? There are two narrations: if we say it is valid, it is valid here; if we say it is not, it is not and nothing occurs. If he says "If you give me wine or carrion, you are divorced" and she gives it to him, she is divorced and nothing falls upon her (al-Mughni, 7/261).
The formula of the khul' is the offer and the acceptance; it divides into explicit and allusive. There are terms upon which the jurists agree that they constitute the khul', and others over which they differ.
The Hanafis say that the terms of the khul' are five: "I have made khul' with you," "I have absolved you" (mubarat), "I have separated from you by bay'", "I have separated from you," "Divorce yourself against a thousand." If he says "I have made khul' with you against a thousand," she accepts, and he then says "I did not intend the divorce," he is not believed at court, for the mention of the compensation indicates it; he is believed on the religious level, Allah knowing the secrets of hearts; but she cannot remain with him, for she is like the judge who knows of him only the apparent, the mention of the compensation indicating it (al-Jawharah al-nirah, 4/517; al-Bahr al-ra'iq, 4/78). "ad-Durr al-mukhtar" added the terms of sale and purchase, such as "I have sold myself to you" or "Buy yourself" (ad-Durr al-mukhtar with Hashiyat Ibn Abidin, 3/443).
The terms of the khul' among the Malikis: the khul', the ransom (fidyah), the amicable settlement (sulh) and the mubarat all denote one single meaning: the woman hands over a compensation against her divorce; but the term khul' specifies that she hands over the whole of what he gave her, the sulh part of it, the ransom more than he gave her, and the mubarat her relinquishment of a right she has against him (Bidayat al-mujtahid, 2/50; al-Istidhkar, 6/76; Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 5/243).
The terms of the khul' among the Shafi'is divide into explicit and allusive. The explicit is what is pronounced with the word of khul' and what derives from it, such as "I have made khul' with you against such a thing": no intention is needed with it, for it was repeated upon the tongue of the bearers of the law to express separation, like the repetition in the Quran; no distinction is made as to whether the property is mentioned or not. According to one view, it is an allusive form that requires the intention of divorce. The ransom (mufadah) and its derivatives count as khul' according to the sounder view, such as "I have ransomed you against such a thing," owing to the use of the term of ransom in the Quran: "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229); according to the contrary view, it is an allusive form, having been neither Quranic nor widespread upon the tongue of the bearers of the law. The truth is that the khul' and the ransom, if property is mentioned with them, are explicit of divorce, its mention signaling separation; if it is not mentioned, they are allusive forms requiring the intention of divorce. The allusive form is what is pronounced with the allusive terms of divorce with the intention of divorce of both spouses together; if either lacks the intention, it is not valid.
The word of rescission is an allusive form, as in "I rescinded your marriage against such a thing" and she accepts: it is an allusive form in separation against compensation, having been neither Quranic nor customary in usage; the word of rescission came in the statement of Ibn Abbas and others, and spread upon the tongues of the scholars. The terms of sale, purchase and mutual rescission are allusive forms of the khul', whether they are deemed divorce or rescission: if he says "I have sold myself to you against such a thing" and she says "I have bought" or "I accept," it is an allusive form of khul'; if he says "I have released you against such a thing" and she says "I have transferred myself," likewise. The khul' is valid through translation into any other language, in consideration of the meaning (al-Bayan, 10/15, 18; Rawdat al-Talibin, 5/265, 270; al-Najm al-Wahhaj, 7/447, 449; Mughni al-Muhtaj, 4/438-439; Nihayat al-Muhtaj, 6/469, 471; ad-Dibaj, 3/380-381).
The Hanbalis say that the word of the khul' divides into explicit and allusive, for the khul' is one of the two types of separation and therefore has its explicit and its allusive, like the divorce. The explicit is what occurs with the word of khul', of rescission or of ransom, without intention of divorce: it is a rescission that does not count in the number of divorces, even without intention of the khul', for these terms are explicit in it as Quranic: "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229). The allusive terms are "I have separated from you by tabayyu'," "I have absolved you," "I have sold myself to you," for they admit the khul' and other things. With the request for khul' and the handing over of the compensation, the khul' is valid without intention, the circumstantial indication derived from the request for khul' and the handing over of the compensation turning toward it and dispensing from intention. The allusive forms require the intention of khul' from the one of the two spouses who pronounced them, like the divorce by allusive form. If the two spouses agree that the wife gift him the dower and absolve him, if it is a debt or something like maintenance or a loan, on condition that he divorce her, and she absolves him or gifts him the dower if it is a commodity, and then he divorces her, the divorce is definitive, the circumstantial indication showing the divorce in exchange for the absolution: it is a divorce against compensation. The same applies if the husband says to her "Absolve me and I will divorce you," or "If you absolve me, I have divorced you," and similar particular and general expressions from which it is understood that he requested the absolution against his divorcing her and that she absolved him against his divorcing her. If she absolved him with an absolution unconnected to the divorce and he then divorces her, it is revocable, being devoid of compensation in word and in meaning. And the translation of the khul' is valid in every language of its speakers, for it is the term established for it in their languages, like Arabic, with no cult of the word (Kashshaf al-Qina', 5/246-247; Sharh Muntaha al-iradat, 5/340-342; Manar al-sabil, 3/76-77).
The jurists differ over the suspension of the khul' upon a condition: is it valid? Is there a difference between a condition coming from the husband and one coming from the wife? The majority of jurists, the Hanafis, Malikis, Shafi'is and Ibn Qudamah among the Hanbalis, hold that the suspension of the khul' upon a condition and its attachment to a term are valid when they come from the husband.
The Hanafis say: the suspension of the khul' and its attachment to a term are valid from the husband and not from the wife, and they depend upon the wife's acceptance: if he says "I have made khul' with my absent wife against such a thing" and the news reaches her and she accepts, it is permitted. As for what comes from the woman, it does not depend upon the husband's acceptance by consensus: if she says "I have made khul' from my absent husband so-and-so against such a thing" and the news reaches him and he permits it, it is not permitted. The reason for the difference is that the khul' on the husband's side is an oath, being the suspension of the divorce upon the acceptance of property; he therefore cannot return from it, and its attachment to a term and its suspension upon a condition are valid, as in "I make khul' with you tomorrow," or "if so-and-so arrives, I make khul' with you against such a thing"; and being an oath, the wife's absence does not prevent its validity, as in the suspension upon entering the house. As for the woman's side, it is an exchange, so that its suspension upon a condition is not valid, nor its attachment to a term, and she may return before the husband's permission; and the condition in exchanges is not suspended, as in the sale (Bada'i' al-sana'i', 5/138).
Imam Ibn al-Humam (may Allah have mercy on him) said: the suspension and the attachment are valid, to the extent that if he says "when tomorrow comes, I make khul' with you against a thousand, or I divorce you against a thousand" and she accepts the next day in a session in which she has knowledge of it, it occurs and the property becomes binding upon her; her acceptance before tomorrow is not valid, the offer itself being suspended upon the condition and non-existent before it, and acceptance before the offer not being valid; there is no option in oaths, so his option is void. A branch of the forms of suspending the khul': if he says "If you enter the house, I make khul' with you against a thousand" and they consent to it and she does it, the khul' is valid, mentioned in the letter of the sin of "at-Tajnis," the suspension coming from the husband being permitted since it is a divorce. In "al-Wajiz": if he says "when so-and-so arrives, I make khul' with you against a thousand, and when tomorrow comes," the acceptance belongs to her after the coming of the term and the arrival of so-and-so (Sharh Fath al-Qadir, 4/231-232).
Imam Ali ibn Khalil al-Tarabulusi (may Allah have mercy on him) said: the suspension of the khul' upon a condition is valid from him and not from her; the khul' being suspended by "If you enter the house, I make khul' with you against such a thing," her acceptance is considered after entering the house; likewise if he says to his wife "Every woman I marry, I have sold her divorce to you against such a thing": the acceptance belongs to her after the marriage, so that if she accepts after the marriage or says "I have bought her divorce," she is divorced, and not if she accepts before the marriage; for this speech of the husband constitutes a khul' after the marriage, the acceptance therefore being conditioned after it; if the option is stipulated for the wife, it is permitted according to Abu Hanifah and not according to the two companions, and the husband's option is not permitted by consensus, the khul' on his side being an oath which she does not accept with option, and on her side an exchange which she accepts (Mu'in al-hukkam, 1/152).
The Malikis say: the suspension of the khul' upon a condition is valid. If the husband suspends the khul' upon taking possession or upon payment, as if he says to his wife "If you hand me such a thing, you are divorced," or "If you pay me such a thing, you are divorced," or "when you pay me such a thing, I have divorced you," her taking possession or her payment is not restricted to the session, that is, the one in which he pronounced this statement to her: as soon as she takes possession or brings him what he asked of her, she is divorced, even after the session, unless the delay grows so long that one understands the husband did not intend the transfer of ownership at that moment, unless an indication shows he meant the session, in which case it is applied upon that indication. As for the acceptance, it is not considered here: the ruling depends on the existence of that upon which the suspension is made; if it exists, the suspended thing occurs, otherwise not (al-Taj wa-l-iklil, 3/32; Sharh Mukhtasar Khalil, 4/24; al-Sharh al-kabir with Hashiyat al-Dasuqi, 3/234-235; Tathbir al-Mukhtasar, 3/123-124).
The Shafi'is say: the khul' is valid as immediate, because of the exchange it contains, and valid as suspended upon a condition, because of the divorce it contains. The immediate is that he effect the separation against compensation, as if the husband says "I have divorced you, or made khul' with you, or khal' you, or ransomed you, or absolved you against a thousand" and the wife answers straightaway "I accept," as the seller says "I have sold you this against a thousand" and the buyer "I accept"; and the husband may retract the offer before the acceptance, as we said for the sale. If the wife says "Divorce me against a thousand" and the husband, upon her request, says "I have divorced you," or if she says "Make khul' with me, or make khul' of me against a thousand" and he answers her request "I have made khul' with you," it is valid, as the buyer says "Sell me this against a thousand" and the seller "I have sold it to you"; if his answer to her request is delayed beyond the immediate, the request is annulled, and she may retract before his answer, as we said of the buyer. If the wife says "I have made khul' with you against a thousand" and the husband says "I accept," it is not valid and no separation occurs by it, the effecting belonging to him and not to her, and his "I accept" not being an effecting; it is as if she said to him "I have divorced you against a thousand" and he answered "I accept." If she says to him "If you divorce me, or when you divorce me, or whenever you divorce me, you shall have a thousand from me," and he says "I have divorced you," the divorce occurs definitive and he takes the thousand from her, for the divorce requires neither her request nor her satisfaction, and had he divorced her of himself it would be valid; what is needed from her is her commitment of the property, which did occur; his answer is required to be immediate, for it is a pure exchange from her side, requiring the immediate answer.
As for the suspended, it is for instance the suspension of the divorce upon the payment or the warranty of property. If the husband begins with a formula of suspension in the affirmative, such as "whenever, or at whatever time, or whatever era you give me such a thing, you are divorced," it is a pure suspension from his side, with no regard to the semblance of exchange, for it belongs to the explicit terms of suspension: the divorce occurs upon the realization of the attribute as in every suspension, and he has no return before the giving, like the suspension devoid of compensation in "If you enter the house, you are divorced." The acceptance is not required in wording, the formula not requiring it, nor the immediate giving in the session: as soon as the giving exists, she is divorced, even beyond what he mentioned, the word indicating time in its generality across all moments; if he restricted this to a determined time or place, it becomes determined. Excluded from the affirmative is the formula of suspension in the negative, such as "whenever you do not give me such a thing, you are divorced," which holds for the immediate, the negative requiring immediacy; and as for the case of the woman who says "whenever you divorce me, you shall have a thousand from me," the answer is restricted to the session of the contract, al-Ghazali having distinguished the two: what predominates on the husband's side is suspension, and on the woman's side exchange. If he says "If, or when, you give me such a thing, you are divorced," it is the same: it is a suspension with no return before the giving, no acceptance required in wording nor giving in the session, both being particles of suspension like "whenever"; excluded on the other hand are "inna" with fathah and "in" with fathah, by which the divorce occurs immediately definitive, because of causation. But the mentioned suspension requires an immediate giving in the session of the contract, for it stands in place of compensation in exchanges; the suspension is not waived in "whenever" and the like because these formulas are explicit on the permission of delay, what predominates on the husband's side being the meaning of suspension, unlike the wife's side.
If the wife begins by demanding the divorce, whether in the form of suspension such as "if" or "whenever," or not, such as "Divorce me against such a thing," and the husband answers immediately, it is an exchange from her side, for she acquires the private part by what she hands over of compensation, with an admixture of reward (ja'alah): she hands over the property against what the husband alone controls, the divorce; when he brings it, the effecting occurs and her aim is attained, like the worker in the ja'alah; she therefore has the return before his answer, for this is the ruling of all exchanges and ja'alahs, and the immediate answer is required in the session of the contract in the previous formulas requiring immediacy and others, like the suspension by "whenever," giving predominance to the exchange from her side, unlike the husband's side. If he divorces with delay, he is the initiator and obtains no compensation, and the divorce is then revocable; however, if she explicitly granted the delay, immediacy is not required. The matching of offer and acceptance is not required here: if she says "Divorce me against a thousand" and he divorces her against five hundred, the divorce occurs validly, for he consented to waive part of what she asked; if she asks the husband for three slaves he would own over her against a thousand and he divorces her once for a third of it, one divorce occurs for the third, predominance being given to the admixture of ja'alah, as if one said "If you return my three slaves, you shall have a thousand" and he returns one: he takes the third of the thousand; if he divorces her twice, he takes two-thirds (al-Muhadhdhab, 2/72-73; al-Bayan, 10/19, 23; Rawdat al-Talibin, 5/266-269; al-Najm al-Wahhaj, 7/450-455; Mughni al-Muhtaj, 4/440-442; Tuhfat al-Muhtaj, 9/266-273; ad-Dibaj, 3/382-385).
The Hanbalis, according to the school, hold that the khul' is not valid suspended upon a condition, like the sale: if he says to his wife "If you hand me such a thing, I make khul' with you," the khul' is not valid, even were she to hand him what he named, as with binding exchanges. If she says "Put my matter in my hand and I give you this slave," and he does it, that is, puts her matter in her hand, and takes possession of the slave, the slave belongs to him, for he fulfilled toward her what he allocated to her in equivalent; he may dispose of the slave even before she chooses for herself, like his other properties; and she may choose whenever she wishes, the allocation he made of it to her, so long as he has not consummated nor made return; if he retracts from placing her matter in her hand, she may claim from him the compensation she handed over in exchange, slave or other, for he did not hand her the counterpart.
If the husband says to his wife "When the beginning of the month comes, your matter is in your hand," he may annul this attribute, for it is a delegation, which is revocable, and in no way belongs to the suspension of the divorce, unless he intends one by it. Imam Ahmad said: if she allocated to him a thousand dirhams so that he grant her the choice, and he granted it to her and she chose the husband, he returns nothing of the thousand, for he did what she engaged him for, and it therefore became established for him. If she says "Divorce me against a dinar" and he divorces her and she then apostatizes from Islam, the dinar remains binding upon her on account of the divorce, and the divorce occurs definitive, being against compensation, the apostasy changing nothing because of its posteriority. If he divorces her after her apostasy before consummating, she is separated by the apostasy and the divorce does not occur, the definitive separation not being followed by divorce. If he divorced her after her apostasy and after consummation, the matter awaits the end of the 'iddah: if she remains in her apostasy until her term ends, it is established that the divorce did not occur, for she was no longer a wife at the moment he divorced her; if she embraces Islam during the 'iddah, the divorce occurred, for it is established she was a wife at that time (Kashshaf al-Qina', 5/247-248; al-Furu', 5/271; Manar al-sabil, 3/73).
Ibn Qudamah (may Allah have mercy on him) says in "al-Kafi" (3/146-147): the khul' is valid as immediate with the word of exchange, because of the exchange it contains, and suspended upon a condition, because of the divorce it contains. The immediate with the word of exchange is that he effect the separation against compensation by saying "I have khal' you against a thousand, or divorced you against a thousand, or you are divorced against a thousand," and she say "I accept," as he says "I have sold you this garment against a thousand" and she says "I accept": this is the qadi's view, and the analogy of Ahmad's statement is that the divorce occurs revocable and he is entitled to nothing, for he effected the divorce he controls without suspending it upon a condition, and allocated from her a compensation she neither handed over nor consented to, which is therefore not binding upon her. As for the correct exchange, it is for instance that the woman say "Make khul' with me, or divorce me against a thousand, or for a thousand, or I have a thousand upon me," and he say "I have divorced you," as she says "Sell me this garment against a thousand" and he says "I have sold it to you"; there is no need to repeat the thousand in the answer, the divorce referring back to it as in the sale; and the answer is valid here only upon the immediate; the man may retract in the offer before the acceptance, and the woman retract in the request before the answer, as in the sale. As for the suspended, he may suspend the divorce upon the payment of property or its warranty, saying "If you give me a thousand, or when you give me a thousand, or whenever you give me a thousand, or whenever you warrant me a thousand, you are divorced": as soon as she warrants the thousand to him or gives it to him, she is divorced, upon the immediate or the delay, for it is a suspension of the divorce upon a condition, which occurs upon the existence of the condition as if it were devoid of mention of compensation; and it suffices for the gift that the property be presented and that he permit the taking, whether he takes or not, for the name of the gift falls upon it, one says "I gave him and he did not take." If she gives him part of the thousand, she is not divorced, the condition not being fulfilled. If she says "Divorce me against a thousand" and he says "You are divorced against a thousand if you wish," she is not divorced until she wishes, for he suspended upon the will, and nothing occurs without it, whether she wills upon the immediate or the delay; this is stated textually, for he made the will a condition, like the suspension upon entering the house. Section: if he says "You are divorced and you owe a thousand," she is divorced revocably and he is entitled to nothing, for he did not make the thousand a compensation for the divorce nor a condition in it: he only appended the thousand to the divorce whose effecting he controls, so that what he controls occurred, not what he does not control. If he says "You are divorced against a thousand, or against having a thousand upon you," Ahmad said likewise, for "against" is neither a particle of condition nor its counterpart, so that it is not valid to say "I sold you my garment against a thousand"; and the qadi said the divorce does not occur by it until she accepts that.