Chapter Two
Divorce upon Payment
Al-Khol’ and Al-Mobārāt
According to the scholars’ terminology, a khol’ is: a divorce that takes place in response to the request of the wife who has developed an aversion to or hatred of her husband, and which is granted upon a payment that she makes to the husband; mobārāt is: a mutually-agreed divorce that takes place between a married couple who have developed an aversionto or hatred of each other, and which is granted upon a payment that the wife makes to the husband.
Both the khol’ and mobārāt are forms of divorce aimed at separation between the married couple, so the conditions of divorce are also observed here, as well as other things as follows:
1500. The khol’ is based on two things:
1- The woman hates her husband and if she stays with him it is feared that she will rebel against him and against obeying him when he claims his rights, which it is obligatory for her to accede to, thus resulting in disobedience to God, regardless of the reasons for hating him.
2- The divorce request is coupled with the wife’s proposal to pay an amount of money (or asset) to her husband to divorce her. It is a condition that the money or asset paid is owned by the wife and can be used, and is allowed to be owned by Muslims, and is accepted in exchange transactions and that the payment is made upon her free will.
1501. The best form of khol’ is: the woman begins by declaring that she will make the payment, using the correct classical Arabic, saying – for example –: ‘Bethelto leka alfa dollār li-tekhla‘anĪ ‘alayhi’ (I am paying you one thousand dollars so you will divorce me in the khol’ way) and the husband says immediately: ‘Qabilto al-Bathl’ (I have accepted the payment proposal). Then the husband hastens after accepting the payment proposal, without delay– to declare the khol’ by saying: ‘ZawjetĪ folāneh mokhtala’ah ‘alā mā bathalt, fe hiye tāliq’ (My wife so-and-so is divorced in the khol’ way upon what she paid, so she is divorced.) It can also be declared using the khol’ term on its own or the talāq (divorce) term on its own. It is also valid that that the payment proposal is done in a request form from the wife, if the husband follows this with the declaration of divorce; so if the wife says: ‘talliqni ‘alā alfi dollār’ (Divorce me upon (payment of) one thousand dollars) and the husband says: ‘Anti tāliq’ (You are divorced) the divorce is established as khol’ and she is obliged to pay this amount in exchange.
1502. A khol’ divorce is irrevocable, and does not allow the husband to retract from it unless the woman retracts from the payment during the marriage-abstention period; so if she returns to him, he must return the payment to her; after that he may choose to keep the divorce, which has now turned revocable, or to return to her, as long as she is still in the marriage-abstention period and he is returning her to his marriage.
That said, she is not allowed to retract from the payment when her husband can no longer return to her after her retraction from the payment, such as if the marriage-abstention period has finished or if the divorce itself was irrevocable, for example in the case the divorce of someone who has not had sexual intercourse and the like.
1503. There is no inheritance between the husband and the khol’-divorced wife if one of them dies during the marriage-abstention period, unless she retracted from the payment and the case allowed the husband to return to her.
1504. Mobārāt does not differ from khol’ in all the previous conditions and rulings except in two points:
1- In mobārāt, the two couple must hate each other, unlike in khol’ where the hatred comes from the wife only.
2- The payment must not be more than the dowry, but it must be equal to or less than it, while in khol’ the payment is allowed to be more than the dowry.
Addendum on Adh-Dhehār and Al-Li‘ān
(A) Adh-Dhehār (prohibiting by likening one’s wife to an unmarriageable women)
According to the terminology of the scholars, dhehār is the intention of the husband to separate from his wife, showing his intention by using a form in which he likens her to the back of her mother in its prohibition to him (or to another woman other than his mother amongst the women who are biologically unmarriageable for him), such as by saying: ‘Anti ‘alayyah ka-dhāri ommi’ (You are for me like my mother’s back). This was one type of divorce used before Islam then Islam prohibited it and put restraints on it, two of which we are going to explain here:
1505. If the dhehār is declared unconditionally, it takes effect immediately, but if it is declared upon a condition, its consequence will not manifest itself unless the condition is fulfilled, and when it takes effect the man is forbidden from sexual intercourse with his wife until he makes atonement (give kaffārah) for dhehār, which is: freeing a slave, but if he cannot then to fast for two consecutive months, and if he fails in this then to feed sixty miskīns, as explained in the section on atonement.
1506. If he has sexual intercourse with his wife – the subject of the dhehār which he had declared – before making atonement, in this case he has sinned and atonement is due on this act in particular; then he must abstain from sexual intercourse with her until he makes atonement for the dhehār as an obligatory precaution. And if the sexual intercourse was repeated by him before the dhehār atonement, another atonement will be due – as an obligatory precaution – for the second intercourse, but not the third or any other after that.
(B) Al-Li‘ān (sworn allegation of adultery committed by one’s spouse)
1507. It is not allowed for the husband to accuse his wife of adultery and to come out with it and slander her on the basis of mere suspicion or doubt, even if it has become known to a lot of people, or it comes through information provided by individuals whom he trusts. But if he becomes certain that adultery took place as a result of seeing the sexual intercourse itself, in this case he is allowed to openly accuse her; however, if his wife did not confess to adultery four times, or if four just men do not give witness on the adultery for him, he must be punished (hadd). If he slanders her with adultery without witnesses nor confession from her, his punishment will not be waived except by ‘molā‘anah’ (derived from la‘n, i.e. cursing – the whole thing is li‘ān), which is: he must give witness under oath four times that she committed adultery and curse himself – giving witness for the fifth time under oath – if he is a liar. If this is done, her adultery is confirmed and she will deserve punishment; but if the wife insists that he is lying in his witness, she – to avoid punishment – must give witness under oath four times that he is a liar and to make a supplication – giving witness for the fifth time under oath – that Allah’s wrath will fall on her if he was telling the truth. All of these proceedings are to be carried out in front of the Islamic authority, or a person appointed by him.
1508. If the li‘ān which meets all conditions is established, the following consequences take effect:
1- The invalidation of the marriage contract between them the moment the cursing process takes place, and the husband has to pay the dowry that he owes.
2- Permanent separation between them, so she will never be allowed to have him back, neither by returning to him (during the marriage-abstention period) nor through a new contract, even if she marries another man and is divorced from him later.
3- The punishment (hadd) for slander imposed on the husband is cancelled, and the punishment of adultery imposed on the wife is cancelled.