Fatwa ID: 07022

Answered by: Maulana Abdul Malik

Question:

My question is: Did the judge’s decision alone lead to the khula or not? Is my wife still married to me? Or is our marriage legally annulled? If the separation and marriage was not annulled according to Sharia law, then my wife married another person without divorce or separation or without the marriage being annulled according to Sharia law, then what is her arrangement according to Sharia law?

In the name of Allah, the Most Gracious, the Most Merciful

Answer:

There is no harm if the wife asks for a divorce from her husband in exchange for monetary compensation in the event that the couple is unable to live together in harmony. Khula’ is the name of this procedure. (Mukhtasar al Quduri, pg 173)[1]

Khula’ will only be valid if the husband agrees to the request. Without the husband’s approval, it will not take effect. Therefore, a court cannot grant Khula’ to a wife against her husband’s desires or without his consent. (Al Bada’i al Sana’i, pg 376, vol 4)[2]

In light of the above, Khula’ will not result from the judge’s decision alone without the husband’s approval and acceptance. Therefore, if the decision was unilateral the Khula’ would be invalid and the marriage would still be valid. Henceforth, since the marriage contract is still binding between you and your wife it will be impermissible for her to enter another marriage until her marriage with you is dissolved in a Shari’ah compliant manner.

[1] إذا اشتاق الزوجان وخافا أن لا يقيما حدود الله فلا بأس أن تفتدي نفسها منه بمال يخلعها به فإذ فعل ذلك وقع بالخلع تطليقة بائنة ولزمها المال

[2] و أما ركنه فهو الإيجاب و القبول لأنه عقد على الطلاق بعوض فلا تقع الفرقة و لا يستحق العوض بدون القبول

Only Allah Knows Best

Written by Maulana Abdul Malik

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham