Fatwa No : 97155
Ruling on a Court-Granted Unilateral Khula Decree

Ruling on a Court-Granted Unilateral Khula Decree

Assalamu Alaikum wa Rahmatullahi wa Barakatuh,
We have obtained a decree of khula from the Family Court. All the available court documents relating to this matter are attached with this inquiry.
The female petitioner explained that her husband was not willing to grant khula. He was also not present on the day of the judgment and did not sign any documents. The judge provided an opportunity for reconciliation, but the husband was not willing to provide a separate residence, while the wife was not willing to live in a joint family home.
The matter we would now like to ascertain is:
In light of the attached court documents, has khula also legally taken effect according to Shariah, or not?
In the present circumstances, can the two of us resume living together as husband and wife, or not?

الجوابُ حامِدا ًو مُصلیِّا ً

The court documents attached to the question, along with the statement of the female petitioner, have been examined in detail from the perspective of Shariah. It is evident from the aforementioned documents that, after the reconciliation proceedings failed, the court ordered the termination of the marriage on the basis of khula without the husband's permission and consent. According to Shariah, however, the consent of both the husband and wife is necessary for khula to be valid and legally effective. If the husband does not agree to khula and does not express his acceptance, then khula does not take effect according to Shariah merely on the basis of the wife's request or a unilateral court decree. Since, according to the record, the husband did not agree to khula and did not express his acceptance before the court, this khula is not valid according to Shariah. The marriage has therefore not ended according to Shariah by virtue of the aforementioned court-granted khula. Accordingly, the two parties remain husband and wife according to Shariah and may continue living together as husband and wife as before, without renewing the marriage contract.

مأخَذُ الفَتوی

حاشية ابن عابدين = رد المحتار - ط الحلبي»
«وأما ركنه فهو كما في البدائع: إذا كان بعوض الإيجاب والقبول لأنه عقد على الطلاق بعوض، فلا تقع الفرقة، ولا يستحق العوض بدون القبول… وفيها أيضا قال: خالعتك على كذا وسمى مالا معلوما لا يقع الطلاق ما لم تقبل، كما لو قال " طلقتك " على ألف اهـ أي لأنه معلق على القبول.»(3/ 441)