The difference between khul‘, talaaq and

faskh (ways of ending a marriage)

Praise be to Allah

Separation between the spouses can only be done in one of two ways: talaaq (divorce) or faskh
(annulment).

The difference between them is that talaaq is the ending of the marital relationship by the
instigation of the husband, and it involves specific, well-known phrases.

As for faskh, it is annulment of the marriage contract and dissolution of the marital bond
completely, as if it never happened, and this can only be done by means of the verdict of a qaadi
(judge) or a shar‘i ruling.

The differences between the two include the following:

1.

Talaaq can only be done by means of the husband’s utterance, by his choice and with his
consent. As for faskh, it is not uttered by the husband, and is not conditional upon his consent or
choice.

Imam ash-Shaafa‘i (may Allah have mercy on him) said: Any case in which it is ruled [by a
qaadi] that a couple be separated, when the husband did not utter words to that effect and did not
want it… this is a separation and be called talaaq. End quote. Al-Umm (5/128).

2.

There are many reasons for talaaq, and it may occur for no reason except that the husband wants
to leave his wife.

As for faskh, it can only occur when there is a reason that makes it necessary or permissible.

Examples of reasons for which the marriage contract may be annulled (faskh) include the
following:

· Lack of compatibility between the spouses, according to those scholars who regard that as one
of the conditions for the marriage contract to be valid.

· If one of the spouses apostatises from Islam and does not come back to it.

· If the husband becomes Muslim and his wife refuses to become Muslim, and she is a mushrik
(polytheist), not one of the people of the Book (i.e., Jewish or Christian).
· When li‘aan occurs between the spouses [li‘aan is a process done where the husband accuses
the wife of adultery and she denies it, and each swears oaths invoking the curse of Allah if he or
she is lying].

· Financial difficulty on the part of the husband, and inability to spend on his wife’s
maintenance, if the wife requests annulment of the marriage.

· Presence of a defect in either spouse that prevents intimacy or creates revulsion between them.

3.

The husband has no right to take his wife back after faskh (annulment). He can only take her
back with a new marriage contract and with her consent. In the case of talaaq, she is still his wife
so long as she is still in ‘iddah following a revocable talaaq (i.e., first or second talaaq), and he
has the right to take her back after the first or second talaaq, without a new marriage contract,
and regardless of whether she agrees or not.

4.

Faskh is not counted as one of the three talaaqs that the man may issue.

Imam ash-Shaafa‘i said: Any faskh that occurs between the spouses is not counted as a talaaq,
whether a first or subsequent talaaq. End quote from al-Umm (5/199).

Ibn ‘Abd al-Barr said: The difference between faskh and talaaq, even though each of them is a
separation between the spouses, is that if the spouses get back together after faskh, then they will
get back together on the basis of the original marriage and the woman still has three talaaqs left
with her husband, whereas if he divorced her by talaaq then took her back, she has two talaaqs
left with him. End quote from al-Istidhkaar (6/181).

5.

Talaaq is the husband’s right, and it is not dependent upon the ruling of a qaadi (judge), although
it may occur by mutual consent between the spouses. As for faskh, it depends upon a shar‘i
ruling or the verdict of a qaadi. Faskh cannot be done simply by mutual consent between the
spouses, except in the case of khul‘.

Ibn al-Qayyim said: The spouses do not have the right to agree to annul the marriage without
compensation (i.e., khul‘), according to scholarly consensus. End quote from Zaad al-Ma‘aad
(5/598).

6.

If faskh occurs before consummation of the marriage, the woman is not entitled to anything of
the mahr (dowry). In the event of talaaq before consummation of the marriage, she is entitled to
half of the agreed-upon mahr.
As for khul‘, this refers to when the woman asks her husband to separate from her in return for
financial compensation or giving up her mahr or part of it.

The scholars differed as to whether khul‘ is faskh (an annulment) or talaaq (a divorce). What is
more likely to be correct is that it is faskh. This has been explained previously in the answer to
question no. 126444.

[Based on explanations of the differences in the following sources:

Al-Manthoor fi’l-Qawaa‘id (3/24)

Al-Fiqh al-Islami wa Adillatuhu (4/595)

Al-Mawsoo‘ah al-Fiqhiyyah al-Kuwaitiyyah (32/107-113, 32/137)

Fiqh as-Sunnah (2/314)]

And Allah knows best.

Faskh
Introduction

In Islamic law the right of terminating the marriage through a Talaq has been given to the
husband. There is great wisdom in this teaching of Islam. Not withstanding the above, Islam has
also taken into consideration the fact that a husband may sometimes abuse the power given to
him and cause his wife undue distress by refusing to release her from marriage, despite the
objectives of the marriage not being achieved. In these circumstances Islam has given the wife an
opportunity to seek relief from such oppression. However, it is important to bear in mind the
severe warnings directed to a wife who unduly seeks a divorce. Rasulullah r has mentioned that
the fragrance of Jannah is Haram for a woman who seeks a divorce without a valid reason
(Musnad Ahmad).

Importantly a woman must exhaust all possible avenues of reconciliation prior to considering
Faskh. Faskh is resorted to as an absolute last resort when all other mechanisms have failed.

Valid Grounds for Faskh

The following constitute some of the common valid grounds for Faskh:
1. Absent husband: absconding or missing
2. Failure to provide maintenance: inability or refusal
3. Serious health condition or Disease: insanity, leprosy, impotency, HIV or any such disease
that could endanger the wife
4. Severe abuse: Physical or other
5. Gross neglect and/or undesirable conduct: spouses fear inability to fulfill the limits prescribed
by Allah
6. Lengthy imprisonment

N.B: The above mentioned grounds are not exhaustive and are governed by conditions and
subject to further details as expounded in the Shariah.

The Process of Annulment

A woman who wishes to apply to the Muslim Marriages Tribunal for dissolution of her marriage
must comply with the following:

1. She should have made a concerted effort to reconcile her marriage by adopting the necessary
measures such as marital counseling, external intervention etc.

2. If every effort to reconcile the marriage has failed and she believes that no possibility of
reconciliation remains, she may then consult the Muslim Marriages Tribunal.

3. The Tribunal will require her to fill in the Pre Application Assessment Form which would
elicit important information and documentation, in order to ascertain the merits of her
application.

4. Once the above is established, the applicant will formally apply for dissolution of marriage by
completing the Application for Dissolution Form.

5. The Tribunal would thereafter undertake to establish contact with the husband for the purpose
of conducting a hearing wherein both parties would be accorded a fair chance to present their
case. The parties would be given adequate notification before the date of the hearing is set. In the
event of the husband not appearing, the Tribunal reserves the right to issue a default judgment.

6. Both parties must be present at all the hearings of the Tribunal in order to state their case,
present their evidence and undergo cross examination. These hearings may also be recorded.

7. After following due process, which could entail a substantial amount of time, the Tribunal will
issue a judgment with regards to the annulment.

8. If the Tribunal annuls the marriage, the wife will be required to observe the Iddah.
This is a general overview of Faskh and its procedure. Related queries should be referred to a
competent Alim or to the Tribunal.

Faskh-e-Nikah

As previously mentioned, if the husband refuses to give his wife Islamic Talaq, the wife would effectively
be stuck in her marriage. However,Islamic jurisprudence provides for the wife in enabling marriage to be
dissolved by a Qadhi (a judge who sits in a Shariah court) upon her application to the same.

In short, therefore, the Faskh-e-Nikah is the dissolution of an Islamic marriage pronounced by a third
party upon application by the wife. Furthermore, the effect of a pronouncement of Faskh-e-Nikah is the
same as a Talaq-e-Ba'in - the marriage comes to an irrevocable end.

This is the type of dissolution effected by a Shariah Councils in a country where Shariah law is the law of
the land, and also when a Muslim woman applies to a Shariah Councils here in England. What must be
remembered here is that the dissolution of an Islamic Nikah by a Shariah Councils has absolutely no
effect on the civil marriage (if there is one) and, furthermore, has no jurisdiction in this country. It simply
dissolves the Islamic marriage and nothing else.
The reason why a woman may seek dissolution of marriage by way of Faskh-e-Nikah is when the
husband refuses to give Talaq and is thereby not fulfilling the rights of the wife. This refusal to give
Talaq, when there are clear grounds for doing so, is in itself prohibited for the husband from an Islamic
standpoint. However, due to lack of education and the influence of a negative and patriarchal Asian sub-
continental culture, a lot of Muslim men in this country refuse to give Talaq and attempt to use it to
exercise an element of control over the wife.

The Qur'an is very clear in its guidance of this point in exhorting Muslim men to retain / treat women 'in
kindness or let them go in kindness'. However, as with many things in life, whilst the theory is sound, its
practical application is less so - Talaq is either unreasonably refused or used as a threat by some Muslim
men.

In practice, I often like the procedure used to obtain Faskh in this country as the undefended civil
divorce procedure whereby the petitioner has to establish that the marriage has irretrievably broken
down by proving one of the five facts found at s 1(2) of the Matrimonial Causes Act 1973. For Faskh, the
thinking is similar in that the applicant has to prove that there has been Shiqaq (irretrievable breakdown
of the marriage). The common way of doing that is, by way of statement, usually alleging a mixture of
the five facts.

This generally means that the ground relied upon by the wife to establish Shiqaq is similar to the ground
of unreasonable behaviour as per s 1(2)(b) of the 1973 Act. The Qadhi can dissolve the marriage on the
following grounds:

 dowry to the wife being excessively low;

 husband's failure to fulfil marital obligation;
 husband's whereabouts unknown;
 husband's failure to provide maintenance despite capacity to do so;
 cruelty to the wife;
 serious discord between the parties; and
 husband having married the wife by deception regarding his condition (medical or other).

The above list is not complete, but I have provided it to give readers an idea of what sort of things
scholars in England look at when Muslim women ask Shariah councils to dissolve marriage. Family
practitioners reading this will recognise this list as the usual mixture of allegations of desertion,
domestic abuse (including emotional / financial) and domestic violence, raised when petitions are
drafted on the ground of unreasonable behaviour.

What may not be immediately clear, but is a divisive point commonly raised by husbands when they find
that a Shariah council is going to dissolve the marriage, is the point that a Qadhi can dissolve the
marriage simply on the point that the wife does not wish to stay in the marriage as there is serious
discord between the parties. The jurisprudence here is that the Qadhi must first appoint arbitrators to
try and effect reconciliation but, if that is not successful, the Qadhi can, on the wife's demand, effect
separation on the ground of mutual discord.
In my humble opinion, this goes to the heart of the issue of the control which Muslim men think they
have over women and goes some way to balancing the unilateral right of Talaq that only the men have.

Conclusion

This concludes Part 3 of the 'Different Methods of Islamic Separation' series. I most sincerely hope that
the information set out above is useful. Please remember my comments about only the Hanafi school of
thought being taken into consideration, as I can already imagine people coming forward with different
views on each of the different types of Talaq.

One final note: I would like all readers to consider the detail that Islamic jurisprudence places on how
the marriage is brought to an end, the continuing emphasis on reconciliation, and how different types of
separation affect the nature of of reconciliation. Islam always has and will continue to place great
importance on the structure and stability of the family unit as a whole.

Siddique Patel is head of the family department at Kamrans Solicitors. You ca

Increasing number of divorces?

Across the globe, divorce rates have been on the rise and the reasons for it are varied. In the
majority of the divorce cases, infidelity or extra marital affair is the top reason for a divorce,
while financial problems and desertion were also cited as reasons for divorce.

Yes, they are of course more serious cases of abuse or infidelity which causes the couple to have
thoughts of separation or divorce. For some couples they will consider going for counselling
sessions to try and resolve their marital issues.

Most would try to be amicable and save their marriage, especially if they have children. It is
important to consider the future of their children first and put their children’s best interests at
heart and will try to put up with anything that is being thrown to them.
However, no matter how patient a person can be, there is a limit to one’s patience and sooner or
later, their patience will run out. So where do you go? How do you proceed? Do you need to care
about other people’s perceptions of you or your next course of actions?

We are here to guide you through the intricacies of divorce.

In our next article, we share with you on the processes of getting a divorce in Singapore.

Engaging a lawyer is not compulsory but it is definitely helpful especially when

there is a lot at stake.

As lawyers, our professional duty is to represent our clients through their divorce
proceedings. We will not advise you on whether or not is it better for you to
divorce. That is a decision that you will have to make on your own accord.

If you have not made up your mind or wish to save your marriage, please proceed
to a counsellor or Ustaz who will be able to advise you better.