My question is regarding khula.I have gotten khula from my husband in front of shaikh and two witnesses. After 6 months we decided to get back together and got married with a new marriage contract. Then again after about two years I asked for khula and its been about 10 months now since then. We do have one child together, inshallah his dad told me he promises Allah and me that he wouldn't give me a hard time like he did before. So for Allah's sake and my son I am willing to marry him again. My question is since I had khula done twice ( this would be our "third" marriage contract if we got married again). I was just wondering if its OK in Islam for us to get married again? Does this count as three divorce? if not does it count as divorce at all? Please advise us as to what has to be done.
Praise be to Allaah.
Khula’ is not regarded as a
talaaq even if the word talaaq is used, according to the more correct
opinion.
This may be explained as
follows:
1.
If khula’ takes place
without using the word talaaq, and is not intended as a talaaq, then it is
an annulment (of the marriage contract) according to a number of scholars.
This is the view of al-Shaafa’i in his old madhhab, and it is the view of
the Hanbalis. The fact that it is an annulment means that it is not counted
as a talaaq. The one who separated from his wife by khula’ twice may go back
to her with a new marriage contract, and it is not counted as a talaaq at
all.
An example of that is if
the husband said, “I separated from my wife by khula’ in return for
such-and-such an amount of money” or “I annulled her marriage in return for
such and such.”
2.
But if the khula’ involved
the word talaaq, such as saying “I divorce (talaqtu) my wife in return for
such-and-such an amount of money”, then it is a talaaq according to the
majority of scholars. See al-Mawsoo'ah al-Fiqhiyyah (19/237).
Some of the scholars are of
the view that this is also an annulment and is not counted as a talaaq, even
if the word talaaq is used. This was narrated from Ibn ‘Abbaas (may Allaah
be pleased with him) and was the view favoured by Shaykh al-Islam Ibn
Taymiyah, who said: It is the stated view of Imam Ahmad and his oldest
companions.
See: al-Insaaf
(8/393).
Shaykh Ibn ‘Uthaymeen (may
Allaah have mercy on him) said: But the more correct view is that khula’ is
not talaaq, even if the actual word talaaq is used. This is indicated by the
Holy Qur’aan. Allaah, may He be glorified and exalted, said (interpretation
of the meaning):
“The divorce is twice,
after that, either you retain her on reasonable terms or release her with
kindness”
[al-Baqarah 2:229]
i.e., within the first two
times, either keep her or let her go, it is up to you.
“And it is not lawful
for you (men) to take back (from your wives) any of your Mahr (bridal-money
given by the husband to his wife at the time of marriage) which you have
given them, except when both parties fear that they would be unable to keep
the limits ordained by Allaah (e.g. to deal with each other on a fair
basis). Then if you fear that they would not be able to keep the limits
ordained by Allaah, then there is no sin on either of them if she gives back
(the Mahr or a part of it) for her Al-Khul‘ (divorce)”
[al-Baqarah 2:229]
So this is a separation on
the basis of giving back (all or part of the mahr). Then Allaah, may He be
glorified and exalted, says:
“And if he has divorced
her (the third time), then she is not lawful unto him thereafter until she
has married another husband”
[al-Baqarah 2:230].
If we count khula’ as a
talaaq, then these words “And if he has divorced her” would refer to
a fourth talaaq, and this is contrary to scholarly consensus. The words “If
he has divorced her” mean a third divorce, “then she is not lawful
unto him thereafter until she has married another husband”
The evidence in the verse
is clear. Hence Ibn ‘Abbaas (may Allaah be pleased with him) was of the view
that any separation in which compensation is paid is khula’ and not talaaq,
even if the word talaaq is used. This is the correct view. End quote from
al-Sharh al-Mumti’ (12/467-470).
And he (may Allaah have
mercy on him) said:
Every wording that points
to a separation in return for compensation is khula’, even if the word
talaaq is used, such as saying for example, “I divorce (talaqtu) my wife in
return for compensation of one thousand riyals.” We say: this is khula’, and
this is what was narrated from Ibn ‘Abbaas (may Allaah have mercy on him),
that everything in which compensation is involved is not talaaq. ‘Abd-Allaah
ibn al-Imam Ahmad said: My father thought the same about khula’ as Ibn
‘Abbaas (may Allaah be pleased with him) did, i.e., it is an annulment, no
matter what wording is used, and it does not count as a talaaq.
An important issue stems
from this: if a man divorces his wife (talaaq) on two separate occasions,
then khula’ takes place using the word talaaq, then according to the view of
those who say that khula’ using the word talaaq counts as talaaq, she is
irrevocably divorced from him, and she is not permissible for him until she
has been married to someone else. According to the view of those who say
that khula’ is an annulment even if the word talaaq is used, she becomes
permissible for him with a new marriage contract even during the ‘iddah.
This view is more correct. But nevertheless we advise those who write down
the khula’ not to use the word talaaq when recording it, rather they should
say “he separated from his wife by khula’ in return for compensation of such
and such value”, because most judges in our country, and I think even in
other countries, believe that if khula’ occurs using the word talaaq, it is
counted as talaaq, and this may be detrimental to the woman, because if it
is a final talaaq she will become irrevocably divorced, and if it is not the
final talaaq it will still be counted against him. End quote from
al-Sharh al-Mumti’ (12/450).
Based on this, if you want
to go back to your husband, then it is essential to have a new marriage contract and no talaaq is counted against you.
And Allaah knows best.
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