Islamic Fiqh > Marriage and family > Khul' (dissolution by compensation) > Khul: pillars, agents and the underage case
Contents
Updated on 24 September 2026 at 7:46 PM
Khul' is the dissolution of the marital bond obtained by the wife in exchange for a compensation paid to her husband. The seven sheets presented here, drawn from the great fiqh encyclopedia devoted to the chapter on khul', set out the exact positions of the schools on khul' performed by the guardian of the minor or the insane, delegation (tawkil), the party who pays the compensation, khul' by a third party, khul' during a terminal illness on the wife's side and then the husband's, and the object of the compensation itself. The takhrij and the references to the classical works are kept as they stand.
The jurists differed: does the father have the right to perform khul' concerning the wife of his minor son? The Hanafis, the Shafi'is and the Hanbalis, in one reported opinion (which is said to be the madhhab), hold that it is not permitted for the father to perform the khul' of his minor or insane son's wife, with or without compensation (as the Shafi'is state).
The proof is the Prophet's saying: "Divorce belongs only to the one who seizes the leg," that is, the one who holds authority. Moreover, such a khul' entails the father's waiver of his own right over the marriage, so the act is not valid from him, like a creditor releasing a debt owed to himself.
A man came to the Prophet and said: "O Messenger of Allah, my master married me to his slave woman, and he wants to separate us." The Messenger of Allah then ascended the pulpit and said: "O people, what is the matter with one of you who marries his slave to his slave woman and then wants to separate them! Divorce belongs only to the one who seizes the leg."Hasan hadith, reported by Ibn Majah (no. 2081), from Ibn Abbas
Sources: Mukhtasar Ikhtilaf al-Ulama (2/469); al-Bayan (10/10, 11); Rawdat al-Talibin (5/247); al-Najm al-Wahhaj (7/432); Mughni al-Muhtaj (4/430); Tuhfat al-Muhtaj (9/227); Nihayat al-Muhtaj (6/457); al-Dibaj (3/371); al-Kafi (3/143); al-Muharrar fi al-Fiqh (2/44); al-Sharh al-Kabir (8/178); al-Mubdi (7/222); al-Insaf (8/385, 386); Kashshaf al-Qina (5/243); Sharh Muntaha al-Iradat (5/337); Manar al-Sabil (3/70).
The Malikis, and the Hanbalis according to the madhhab, hold that the khul' performed by the guardian of the minor is valid. It consists in removing an ownership against compensation, which is permitted whenever there is an interest, as in a sale. Moreover, the one who acquired the right to marry off the minor from the outset also acquired the right to remove that marriage against compensation, as in a sale. Finally, the minor may find an interest in it, and the father is not suspected in this regard.
It is related in al-Mudawwana al-Kubra, concerning the father's khul' with regard to his son and his daughter: Malik permitted the khul' of the father and the guardian over the minor out of regard for the minor's interest. Just as they are permitted to marry him off, it is likewise permitted for them to remove the marriage.
Suhnun related the words of Abd al-Rahman and others from Malik, their versions differing in wording while agreeing in meaning: the minor is among those whose divorce would not be valid. Since his divorce is not valid, the deliberation lies in another's hands. The permission given to the father and the guardian to remove the minor's marriage by khul' makes them as it were divorcers on his behalf, whereas the minor does not belong to those who resent a thing, nor does he object to what the father or the guardian saw as a financial benefit for him. Just as they marry him off against his will because of the advantage drawn from the wealth of a woman of means and the attraction of her marriage, so too they divorce on his behalf for the sake of money.
The Mudawwana then asks: what if the orphan grew up and reached puberty (ihtilam) while being a prodigal (safih); if an adult slave was married by his master without his consent, which is permitted to the master; if the boy married in early childhood reached puberty while a prodigal; or if the guardian married the orphan, now adult and prodigal, with his authorization?
The answer: if the person is an adult, whether slave, orphan or son, and he refuses divorce and loathes it, and he is among those whose divorce, pronounced against their will by their guardian, master or father, would be valid and binding, then it is not permitted for the latter to perform the khul' on his behalf. For khul' occurs only through divorce, and the divorce is not in their hands.
Ibn Wahb related that Malik said, concerning the man who marries the orphan under his guardianship: he may carry out a mutual release of the bond (mubara'a) so long as the orphan has not reached puberty, if he deems that better. For the guardian looks after the orphan's interest, and his authority over him is licit: this is a benefit for the orphan and care for him.
Suhnun adds: do you not see that Malik said that, once the divorce is in the orphan's hands, his compromise (sulh) is no longer permitted, just as the divorce is in the slave's hands and not in the master's, even though it was permitted for the master to marry him off without consultation or deliberation? Thus, whoever does not hold the divorce in his hand, his guardian's deliberation concerning him is valid, and it is permitted to act on his behalf, because of the benefit seen for him in the wealth.
The Mudawwana asks: the minor slave, does the master marry him off? The answer: he has no authorization (idhn) concerning him, yet he may marry him off. Once he has married him off, he can only divorce on his behalf in exchange for something he takes.
Do you not see, said Malik, that it is not permitted for the father to divorce the wife of his minor son, but that it is permitted for him to conclude a compromise for him, which amounts to an irrevocable divorce? The divorce is not permitted to him because he is not in a position of deliberation for the taking of something. The son, however, may be married off by delegation (tafwid), so that nothing falls upon him: the divorce enters by the same channel through which the marriage entered, namely the benefit in what accrues to the son and becomes his.
Sources: al-Mudawwana al-Kubra (5/348, 350); al-Taj wa-l-Iklil (3/23); Mawahib al-Jalil (5/241); Sharh Mukhtasar Khalil (4/17); al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi (3/225); Tahbir al-Mukhtasar (3/112, 113); al-Sharh al-Kabir (8/178); al-Mubdi (7/222); al-Insaf (8/385, 386); Kashshaf al-Qina (5/243); Sharh Muntaha al-Iradat (5/337); Manar al-Sabil (3/70).
The jurists of the four schools agree that delegation is permitted in khul', by virtue of Allah's saying:
"Appoint an arbiter from his family and an arbiter from her family."
Surah An-Nisa (The Women), 35
The two arbiters have the power to perform the khul', which proves that delegation is permitted. Moreover, the khul' contract combines divorce and sale, and delegation is permitted in each of the two: it is therefore permitted in what combines them. The marriage contract is, finally, weightier than its removal by khul', and delegation is permitted in marriage: all the more so in khul'. The wife may therefore delegate without the husband, and the husband without the wife: in khul', the wife is like the buyer in a sale and the husband like the seller, whereas in a sale the buyer may delegate without the seller and the seller without the buyer.
Ibn Qudama said: delegation in khul' is valid from each of the two spouses, as well as from one of them alone; and whoever can validly effect khul' for himself may delegate and be delegated, whether free or slave, male or female, Muslim or disbeliever, under interdiction or of sound judgment. For each of them may bring about the khul', and may therefore be its agent or its principal, like the free and competent person. This is the madhhab of al-Shafi'i and of the people of reasoned opinion (ashab al-ra'y), and no disagreement in the matter is known.
The woman's delegation covers three things: demanding the khul' or the divorce, fixing the compensation, and handing it over. The man's delegation covers three things: stipulating the compensation, receiving it, and effecting the divorce or the khul'.
Delegation is valid with the compensation determined as well as undetermined, for it is a contract of exchange, valid like sale and marriage. Determination is recommended: it is safer against uncertainty (gharar) and easier for the agent, sparing him personal reasoning (ijtihad).
First case: the husband fixes the compensation. If the agent performs the khul' against that amount or more, the act is valid and the stipulated amount binds, for he did what he was ordered to do. If he performs the khul' for less, two opinions clash.
The first is that the khul' is not valid: this is the choice of Ibn Hamid and the Shafi'i madhhab. The agent contradicted his principal, so his act is not valid, like one delegated for the khul' of a woman who instead khul'd another. Besides, he was not authorized to khul' for this lesser compensation, so he is like a stranger. The second is that the khul' is valid and the shortfall is recovered from the agent: this is Abu Bakr's view, since a discrepancy in the amount of the compensation does not annul the khul', unlike the dissolution of the bond. The first opinion is sounder.
If he contravenes the kind of the compensation (for instance if he orders him to khul' for dirhams and he khul's for a slave, or the reverse; or if he orders an immediate compensation and he khul's for a deferred one), the analogy (qiyas) is that the act is not valid. The agent contradicted his principal in the kind of the compensation, so his act is not valid, like the agent in a sale. What he khul'd for belongs neither to the principal, for lack of authorization, nor to the agent, for lack of cause on his side.
The case differs from a discrepancy in the amount, which is remedied by recovering the shortfall from the agent. Al-Qadi, however, says: the analogy would require the agent to be bound by the authorized amount and to keep what he khul'd for, by analogy with the discrepancy in amount. This view is refuted by the analogy with the agent in a sale.
This khul' indeed was not authorized by the husband: it is therefore not valid, as if the principal had not delegated him at all. It would further result in the agent acquiring a compensation the woman never granted him and he never intended to acquire. It would finally result in the woman being khul'd from her husband without any compensation due to her and without her husband's authorization.
As for a discrepancy in the amount, it does not entail that effect, although the correct view is that the khul' is not valid in that case either, for the reasons given above.
Second case: the delegation is given without specification (itlaq al-wakala). The agent must then perform the khul' against the wife's stipulated dowry (mahr musamma), immediate and of the currency of the land. If he khul's against that or more, it is valid, for the surplus is a benefit to her. If he khul's for less, the two opinions mentioned above apply.
Al-Qadi mentions two further possibilities. The first: the stipulated amount lapses and an equivalent dowry (mahr al-mithl) becomes due, for he khul'd without authorization. The second: the husband chooses between accepting the deficient compensation without recourse and rejecting it with recourse.
Imam Ibn Nujaym related that Imam Muhammad mentioned the validity of the delegation given by a minor or a mentally deficient person (ma'tuh) to an adult of sound mind, for the khul'. One single man cannot be the agent of both sides in the khul': if the woman delegates a man for the khul' and the husband delegates him too, whether the compensation is specified or not, this would according to Muhammad be valid, as stated in al-Bazzaziyya. And Allah knows best what is correct.
Sources: al-Hawi al-Kabir (10/89); al-Mughni (7/272, 273); al-Kafi (3/156); see also al-Bada'i' al-Sana'i' (6/23); al-Jawhara al-Nayyira (3/476); al-Bahr al-Ra'iq (4/101, 102); Bidayat al-Mujtahid (2/226); al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi (5/52, 53); al-Taj wa-l-Iklil (4/195); Hashiyat al-Sawi 'ala al-Sharh al-Saghir (8/63); Tahbir al-Mukhtasar (3/118); al-Hawi al-Kabir (10/89, 90); al-Muhadhdhab (1/348); al-Bayan (6/397); Rawdat al-Talibin (3/490) and (5/254); Mughni al-Muhtaj (3/197, 198) and (4/435); Nihayat al-Muhtaj (5/27); al-Najm al-Wahhaj (5/33) and (7/442); al-Dibaj (2/306); Kanz al-Raghibin (2/847); al-Mubdi (7/244); al-Bahr al-Ra'iq (4/102).
The acceptor (al-qabil) is the one who pays the wealth in exchange for the marital right (al-bu'd'); he is called "acceptor" because he stands in the position of the buyer. The acceptor in the khul' of a wife or of any other woman is required to be capable of disposing of wealth, that is, legally bound (mukallaf) and of sound judgment (rashid). The khul' is therefore not valid from a prodigal or a minor.
The Hanafis said: if a man khul'd his minor wife against her dowry and she accepted, or if the minor said to her husband: "khul' me against my dowry" and he did so, the divorce takes place without compensation.
The Malikis said: if the payment is made by one who is not of sound judgment, the husband returns the wealth paid and an irrevocable separation takes place, unless he made it conditional, saying: "if this wealth becomes mine, you are divorced," or: "if your release is valid, you are divorced." If the guardian or the judge then takes the wealth back from the husband, no divorce occurs, unlike the case of one who said it to a woman or a man of sound judgment, or said it after the divorce had already taken place, which does not avail him.
The Shafi'is said: if a man says to his wife under interdiction for prodigality: "I have khul'd you," or: "I divorce you against a thousand," and she accepts, a revocable divorce takes place, whether she acted with the guardian's permission or without it; the wealth is not binding upon her, and the guardian may not dispose of her wealth in a khul'. If she does not accept, no divorce takes place, for the formula requires acceptance: it then resembles a divorce made conditional upon a characteristic.
If he says to her: "I divorce you against a thousand if you wish," and she says without interruption: "I wish," a revocable divorce takes place. If she takes the initiative, saying: "divorce me against such and such," and he consents, a revocable divorce likewise takes place. The acceptance of an insane woman or of a minor without discernment is void, as is the husband's saying: "you are divorced against such and such."
If he says that to a discerning minor girl and she accepts: does a revocable divorce take place, or does nothing occur? Two opinions.
The Hanbalis said: if a woman under interdiction for prodigality, minority or insanity khul's her husband, the khul' is not valid and his divorce takes place as revocable. Her payment of a compensation in the khul' is not valid, for it is a disposal of wealth for which she lacks capacity, whether the guardian permits it or not, since he has no power to authorize donations, and this is of the order of a donation. If the interdicted woman is khul'd with a formula of divorce, it is a revocable divorce and she is not entitled to a compensation; if the formula is not of the kind that effects divorce, it amounts to a khul' without compensation.
It has also been argued that no khul' takes place here, for he consented only in exchange for a compensation she did not deliver, and no recovery through a substitute is possible. As for the woman interdicted for insolvency, her khul' and her payment of the compensation are valid: she has a liability (dhimma) in which her disposal is valid, and the compensation is recovered from her when she becomes able and the interdiction is lifted. The husband cannot claim it from her during her interdiction, as if she had borrowed from him or sold him something on credit.
Sources: al-Anaya (5/497); Hashiyat al-Sawi 'ala al-Sharh al-Saghir (5/245); al-Bayan (10/12); Rawdat al-Talibin (5/249, 250); al-Najm al-Wahhaj (7/436, 437); Mughni al-Muhtaj (4/433, 431); al-Dibaj (3/372, 375).
The jurists of the four schools agree on the validity of the khul' performed by a third party. If a man says to another: "divorce your wife against a thousand at my charge," the divorce takes place as irrevocable; or if he says: "khul' your wife for a thousand dirhams, I stand guarantee for it," or: "against this thousand of mine," and the husband acts accordingly, the khul' is valid and the third party acquires the marital right. The proof of the lawfulness of khul' by a third party is that the husband holds over the wife a right she may waive against compensation: it is therefore equally permitted to another. And just as the husband may divorce without paying anything, he may divorce against compensation paid by a third party.
Al-Mas'udi, of the Shafi'is, said: if a man asks a woman to khul' from her husband against a thousand and she does so, the thousand is upon the asker.
Imam al-Tahawi said: our companions (the Hanafi masters) said: if a man says to the husband: "khul' your wife for a thousand dirhams, I stand guarantee for it," or: "against this thousand of mine," and he acts accordingly, the khul' is valid and the third party acquires. If he says: "against this thousand," without standing guarantee or attributing the sum to himself, nothing occurs, the act remaining suspended upon the wife's acceptance. It is related, through Isa ibn Aban and Isma'il ibn Hammad, that Muhammad held the third party entitled to the thousand, as if he had attributed it to himself.
Al-Qadi Abd al-Wahhab said: the khul' is valid from a third party to the husband, contrary to Abu Thawr. The third party belongs to the people of exchange contracts, from whom payment is valid outside the khul': it is therefore valid in the khul' as from the wife. And since the husband may divorce without paying anything, he may divorce against compensation from a third party.
Al-Mawardi related that al-Shafi'i said: if a third party says to a man: divorce such a woman on condition that you have against me a thousand dirhams, and he acts accordingly, the thousand is binding upon him.
Al-Mawardi commented: this is so when the third party khul's the husband so that he divorces his wife. If it is with her authorization, the khul' is valid and the third party is her agent, as we shall mention. If the third party khul'd without the wife's authorization, with wealth in his liability, and said to the husband: "divorce your wife so-and-so for a thousand dirhams that I owe you," the khul' is valid, the divorce takes place, and the thousand paid binds the third party: this is the view of the majority (al-jumhur).
Abu Thawr, for his part, said that the khul' is void and that no divorce takes place. He argues that khul' is a contract of exchange by which the marital right is acquired, and that this right cannot be acquired for compensation except by a husband through marriage or by a wife through khul'. Since the third party has no such power, any more than the wife without her authorization, the act is corrupt. Compensations, moreover, are paid only for lawful purposes, otherwise it is prodigality and consumption of wealth in vanity: the third party having no purpose in this khul', the act must be rejected. This argument is mistaken.
Our proof is that, since the husband may divorce without any payment and the third party may give him his wealth without any divorce, the husband may divorce against the wealth paid by the third party. We say: whoever may validly pay wealth without divorce may validly pay it against divorce, like the wife as a general rule and the minor conversely. Manumission of a slave is, finally, like divorce, sometimes against compensation and sometimes without: since the third party may pay wealth for a manumission without acquiring anything by it, he may pay wealth for a divorce without acquiring anything by it.
As for his argument that khul' is a contract of exchange like sale, the answer is that it differs from sale in some rulings while agreeing with it in others: the purpose of sale is the acquisition of the sold object, whereas the purpose of khul' is the removal of the husband's ownership. The ownership may therefore pass to one who acquires nothing, just as a bare divorce removes it without acquisition, unlike sale.
As for his argument from the absence of purpose, it is mistaken: the purpose exists, and it may take several forms. First, the third party sees the two spouses settled in a marriage tainted with doubt (shubha), on the point of leading into sin, and wishes to rescue them from it. Second, he sees that they have so departed from conjugal rights that neither of them fulfils the other's right any longer. Third, he may desire to marry her, and thereby induce the husband to step aside from her through the khul'.
Ibn Qudama said: the khul' with a third party is valid without the woman's authorization, for instance if the third party says to the husband: "divorce your wife against a thousand at my charge": this is the view of most scholars. Abu Thawr said: it is not valid, for it is prodigality: he pays a compensation for something that brings him no benefit, since he cannot acquire ownership; it resembles one who would say: "sell your slave to Zayd for a thousand at my charge."
We answer: it is a payment of wealth against the waiver of another's right, valid as if he said: "free your slave, and its price is at my charge." Likewise, if he said: "cast your goods into the sea, and their price is at my charge," that would be valid and binding upon him, even though he waives no one's right: all the more so here. The husband's right is a right over the woman which may be waived against compensation, hence by another, like a debt. The khul' differs, finally, from sale, which is a transfer of ownership and cannot take place without the consent of the one in whose favor the acquisition is established. If the third party says: "divorce your wife for her dowry, I stand guarantee for it," the khul' is valid and her dowry is recovered from him.
Sources: al-Sharh al-Kabir (8/183, 184); al-Mubdi (7/225, 226); al-Insaf (8/391); Kashshaf al-Qina (5/245); al-Bayan (10/14); Sharh Fath al-Qadir (4/240, 241); Mukhtasar Ikhtilaf al-Ulama (2/472); Tabyin al-Haqa'iq (2/274); al-Israf 'ala Nukat Masa'il al-Khilaf (3/394), no. 1222; al-Hawi al-Kabir (10/80); al-Mughni (7/269); see Kashshaf al-Qina (5/243, 244).
A. The khul' of the wife stricken with a terminal illness.
The jurists of the four schools agree that khul' during illness is valid, whether the sick one is the husband, the wife, or both: it is a contract of exchange, valid in illness as is sale.
The jurists nevertheless differed: if the wife khul's herself for more than the equivalent dowry (mahr al-mithl) or for more than her share of inheritance, is the khul' valid? And if it is valid, does it count as the equivalent dowry? The schools detail the question.
The Hanafis hold that, in the khul' of a terminally ill wife, the compensation is charged to the third of her estate, for it is a donation. The marital right, once it has left the husband's ownership, has in effect no value: what the wife paid as compensation is therefore a donation, not valid in favor of an heir, but effective in favor of a non-heir from the third, like a bequest. And this if she dies after her waiting period ('idda) or before consummation of the marriage.
If she dies during her 'idda, the husband takes the lesser of his share of inheritance and of the khul' compensation, should the latter come out of the third. Example: if his inheritance from her is 50, the compensation 60 and the third 100, the inheritance and the compensation both come out of the third. If they do not come out of the third, he takes the lesser of his share of inheritance and of the third.
Explanation: if his inheritance from her is 50, the compensation 60 and the third 100, both come out of the third, and he takes the lesser, namely 50. If the third were 40, he takes the lesser of the third and the inheritance, namely 40. In short, he takes the smallest of his share of inheritance, the compensation and the third.
The Malikis, according to the correct view in their school, and the Hanbalis hold that if the wife khul's her husband during her terminal illness for the amount of the inheritance he would receive from her, or less, the khul' is valid, without recourse, and he does not inherit her. If she khul's herself for more, the excess is void unless the heirs ratify it, for she is suspected of having intended, through this khul', to channel to her husband something of her wealth without compensation, in a manner that would not have been within her power, he being her heir: the excess is therefore void, as if she had bequeathed it to him or acknowledged a debt in his favor. As for the amount of the inheritance, there is no suspicion: had she not khul'd herself from him, he would have received it as inheritance in any case.
The equivalent dowry is not taken into account: the exit of the marital right from the husband's ownership has no value, and counting the equivalent dowry would precisely be to value it. What the wife pays in exchange therefore bears only on what has no value. If she recovers from her illness, the khul' is valid and he keeps the whole of the compensation: we have established that it was not a terminal illness, and the khul' outside a terminal illness is as the khul' in good health.
One Maliki opinion holds that the khul' of the terminally ill wife is valid as against her heirs if she khul's herself for an equivalent dowry: Ibn Wahb related this from Malik. On this narration, the khul' prevails over the heirs' right and is ranked among her sales and purchases: it is permitted so long as there is no favoritism, that is, a khul' for more than the equivalent dowry.
A third Maliki opinion forbids the khul' of the ill wife without any distinction: this is the apparent sense of Malik's view in al-Mudawwana and in Ibn al-Muwazzar's book. What she khul'd herself with during her illness, she intended the husband to take as her capital, whether she lived or died, yet he is not an heir: the act must therefore be void, even if less than his share of inheritance, whether she lived or died. And he is not an heir: the act must therefore be void, even if less than the inheritance he would receive from her.
The Shafi'is hold that if the wife khul's her husband during her terminal illness for the equivalent dowry or less, the khul' is valid and comes out of her capital, even beyond the third. What she paid indeed equals the value of what she owned, as if she had bought merchandise at its price. She may moreover dispose of her wealth for her needs and her pleasures, just as a sick man may marry virgins against dowries equivalent to theirs, without any necessity.
If she khul's herself for more than the equivalent dowry, the excess is charged to the third, for it is favoritism, counted from the third, as if she had bought merchandise above its price. The excess is, with regard to the husband, like a bequest in favor of a non-heir, charged to the third, and not like a bequest in favor of an heir: he left the inheritance through the khul'. Unless he is an heir by another title than marriage, such as the paternal cousin.
Sources: al-Hidaya (2/17); Sharh Fath al-Qadir (3/237); al-Ikhtiyar (3/197); Durrar al-Hukkam (4/361); Majma' al-Anhar (2/112); al-Durr al-Mukhtar ma'a Hashiyat Ibn Abidin (3/460); al-Mudawwana al-Kubra (5/351, 352); al-Kafi (1/278); al-Israf 'ala Nukat Masa'il al-Khilaf (3/394, 395), no. 1223; al-Bayan wa-l-Tahsil (5/291); al-Qawanin al-Fiqhiyya (1/155); al-Taj wa-l-Iklil (3/26); Mawahib al-Jalil (5/250); Sharh Mukhtasar Khalil (4/20); al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi (3/228, 229); Tahbir al-Mukhtasar (3/117); al-Mughni (7/270); Sharh al-Zarkashi (2/456); Kashshaf al-Qina (5/261); al-Mudawwana (5/351, 352).
B. The khul' of the husband stricken with a terminal illness.
The jurists of the four schools agree on the validity of the khul' performed by a terminally ill husband: he may let the marital right go for free by divorce, so if he takes something from her, it is an added benefit for the heirs. Whether the khul' is against the equivalent dowry, more or less, nothing is charged to the third, for were he to divorce without compensation it would be valid, so its validity with compensation is all the more fitting. The heirs lose nothing by his khul': were he to die leaving a wife, she would be separated by his death without passing to his heirs. They therefore cannot hold it against him in any way: they have no right over the marital right of his wife, just as they could not reproach him had he divorced her without compensation.
The jurists nevertheless differed: is a bequest in her favor valid in this situation? And does she inherit from him?
The Hanafis said: if the wife khul's herself from her husband while she is in good health and the husband is sick, the khul' is permitted for a stipulated amount, small or great. Although she becomes a donor, she is indeed sound, and the donation of a sound person is effective. There is then no inheritance between them, whether he dies after the expiry of the 'idda or before, each of the two having consented to the annulment of his own right.
The Malikis said: a man stricken with an alarming illness, and those like him among the interdicted, such as one present on the battle line or one held for execution or amputation, may not as a first move khul' his wife, for that entails removing an heir. If he does so, the act is effective and the divorce takes place.
If he divorces during his alarming illness and she then dies within it, the man does not inherit her, even if he divorced her while he was the sick one, for he is the one who waived what was in his hand. If the man dies, the wife inherits him: he is then a fleer from the inheritance by reason of his divorce, whether the marriage was consummated or not, whether her 'idda had expired and she had remarried or not. As for rulings other than inheritance, she is ruled like any other wife: a waiting period in case of consummation, none otherwise, and the dower is divided in half between them.
A bequest in her favor is not valid. If she kills him by mistake, she inherits from the estate but not the blood money (diya); if she kills him deliberately and with aggression, she inherits neither from the estate nor the blood money.
It is related in al-Mudawwana al-Kubra, concerning the khul' of the sick man: Question: if she khul's herself from him during his illness and he dies of that illness, does she inherit from him in Malik's view? Answer: Malik said: yes, she inherits from him.
Question: likewise if he placed her affair in her own hands or gave her the choice, and she divorced herself while he was sick? Answer: Malik said: yes, she inherits from him. Question: why, when he did not flee from her, she being the one who fled by her own act? Answer: Malik said: every divorce that occurs during an illness, the inheritance belongs to the woman if he dies of that illness and because of it; it is her due.
The Shafi'is said: if the husband khul's during his terminal illness for the equivalent dowry or more, the khul' is valid, as if he had gift-intermarried (tahabu) during his terminal illness. If he khul's for less than the equivalent dowry, it is valid, and the heirs cannot hold it against him, for they have no right over the marital right of his wife. Hence, had he divorced her without compensation, they could not have held it against him either.
The Hanbalis said: if he khul's his wife during his terminal illness, there is no doubt as to its validity, whether for her equivalent dowry, more or less. Nothing is charged to the third, for were he to divorce without compensation it would be valid, so its validity with compensation is all the more fitting. The heirs lose nothing by his khul': were he to die leaving a wife, she would be separated by his death without passing to his heirs.
However, if he divorced her or khul'd her during his terminal illness and then bequeathed her more than her share of inheritance, the heirs may give her no more than her inheritance. If he bequeathed her more than her inheritance, he is under suspicion: he wants her to remain outside the inheritance, in order to channel to her more than her share, like a bequest to an heir. If he bequeathed her her share of inheritance or less, it is valid, with no suspicion: had he not separated from her, she would have taken it as her inheritance in any case.
Sources: al-Bayan (10/43); Rawdat al-Talibin (5/250); al-Najm al-Wahhaj (7/438); Mughni al-Muhtaj (4/433); al-Mabsut (6/193); al-Muhit al-Burhani (3/675); al-Bahr al-Ra'iq (4/82); al-Fatawa al-Hindiyya (1/505); al-Mudawwana al-Kubra (5/351, 352); al-Kafi (1/278); al-Taj wa-l-Iklil (3/24); Mawahib al-Jalil (5/243); Sharh Mukhtasar Khalil (4/18); al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi (3/225); Tahbir al-Mukhtasar (3/113); Hashiyat al-Sawi 'ala al-Sharh al-Saghir (5/262); Rawdat al-Talibin (5/251); al-Mughni (7/270); Sharh al-Zarkashi (2/456); Kashshaf al-Qina (5/261).
The jurists agree that the husband's ownership of the marital right (al-bu'd') is a condition: the khul' is valid only with regard to a wife whose marital bond he holds in fact or in law. As for the irrevocably divorced wife, her khul' is not valid by consensus, for the payment aims at removing the husband's ownership of the marital right, and the husband holds no ownership over the irrevocably divorced wife, possessing her marital right only by removing it.
The khul' of the wife divorced with a revocable divorce: the jurists differed as to whether the khul' takes place with regard to a wife divorced revocably, that is, whether the khul' is valid from her. The majority of the jurists, namely the Hanafis, the Malikis, the Shafi'is according to the more apparent view, and the Hanbalis, hold that the khul' of the revocably divorced wife is valid so long as she is within her waiting period: she is a wife upon whom the divorce may fall, so her khul' may take place, the husband's ownership remaining over her. The khul' is then valid and the wealth established. If her waiting period expires, she is separated, and the khul' is not valid if it becomes clear that it took place after the expiry of the waiting period, and what he took from her is returned to her.
Sources: al-Durr al-Mukhtar ma'a Hashiyat Ibn Abidin (3/441); Aqd al-Jawahir al-Thamina (2/497); al-Taj wa-l-Iklil (3/27); Sharh Mukhtasar Khalil (4/21); Tahbir al-Mukhtasar (3/119); 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); Kashshaf al-Qina (5/314).