Understanding the Ruling on Khul’ Divorce and Its Implications on Marriage
In the Name of Allah, the Entirely Gracious, the Exclusively Merciful
Question:
The questioner says: he divorced his wife three times, and the third divorce was khul’ (separation of the wife in return for a payment), she gave up all her rights in return for divorce, and he handed her the divorce papers. He says: and I have a son from her, and she is currently pregnant, and there are only a few days remaining until she gives birth, and it has become clear to me that sihr (magic) was done between us. Is it permissible for me to take her back?
The answer:
There is a difference of opinion in this issue. The one who includes the divorce of khul’ to be from the three divorces, then she has separated from you, and she is not lawful unto you thereafter until she has married another husband other than you.
This view was adopted by the majority of the fuqaha (Islamic jurists), they considered khul’ as a divorce, so in this instance it is counted as a third divorce, even if he doesn’t utter the words of divorce. As for if he utters divorce then they considered it as a third divorce a fortiori.
And the correct view in this issue, and Allah knows best, is the view which was adopted by Shaykh al-Islam ibn Taymiyyah and ibn al-Qayyim, and it is also the view of ‘Abdullah bin ‘Abbaas and ‘Ikrimah, and that is that khul’ is considered to be an annulment of the marriage contract, even if he utters divorce with the intention of al-fida (the wife giving the husband money in return for divorcing her). So, divorce in return for al-fida is an annulment of the marital contract according to that which Shaykh al-Islam (رحمه الله) considered to be preponderant.
And according to this, it is not considered to be from the three divorces, and it is permissible for you to take your wife back with a new marriage contract, and one divorce remains for you, and this is the correct view.
And it is permissible for you to sign a new marriage contract with her before she gives birth, or after she gives birth, it’s the same thing. And she is not returned to you except with a new marital contract, because the divorce of khul’ is considered an annulment of the marriage contract, so there is no window for returning.
فتاوى فضيلة الشيخ محمد بن حزام الفضلي البعداني حفظه الله وتولاه
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