Divorce by Khuluk

Khuluk is an Arabic term that means to release, to allow to leave, to exonerate, or to set free. Under Muslim matrimonial law, khuluk means to divorce by redemption. In Malay, this is referred to as tebus talak.

The law allows a wife to seek the releasement or being set free from the bond to her husband. In case the husband refuses to pronounce the divorce (talak), a wife can dissolve the marriage (khuluk). For instance, the husband may pronounce the talak after the wife makes a payment to him.

Allowing divorce by way of khuluk or by redemption or tebus talak expressly regulates the Administration of Muslim Law Act in section 47.

To dissolve the marriage by way of khuluk, both parties, the husband and wife, have to provide consent. Section 47(4) of AMLA empowers the court to assess the amount the wife will have to pay to the husband. Based on what was explained so far, it can be concluded that a divorce by khuluk originates from a wife’s application.

The Holy Quran expressly permits divorce by khuluk.

Here, we will share the Yusuf Ali translation of Chapter 1, Verse 229 (Surah Baqarah):

“A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them. If any do transgress the limits ordained by Allah such persons wrong (themselves as well as others).”

Some Muslim scholars and the Prophet (pbuh) have subsequently provided clarification and set the rules on this matter.

1. While a wife may seek divorce from her husband by way of khuluk or independently of khuluk, she may only do so on permissible grounds (permissible under Muslim law.) For instance, a wife may ask for the divorce when she genuinely feels that she has not been capable of correcting her husband’s conduct, despite her best efforts. This includes conduct that offends the tenets or teachings of Islam (i.e., the husband refused to or did not perform the daily obligatory prayers or refused to or did not observe the essential fast in Ramadan).
2. The amount the wife receives from her husband (the redemption amount) should not exceed the amount of the dowry (mahr) agreed upon or paid by him at the time their marriage was solemnised. Some Islamic scholars even consider that anything more is forbidden (haram). The wife and the husband may mutually agree upon the redemption amount.
3. A wife that asks for a divorce by way of khuluk must be an adult of sound mind. If she is a minor or lacks mental capacity, she has no right to ask and enter into a divorce by khuluk. In the event of a minor, a wali or lawful guardian must intervene and represent her. A wife who lacks mental capacity also must need the intervention of a person who is permitted by law to be her representative in litigation.
4. A husband cannot request or initiate a divorce by way of khuluk. Only the wife has this right.
5. Parties cannot revoke a marriage by way of reconciliation (rujuk) in the case of khuluk. In the event of a divorce by khuluk, it affects a talak bain sughra. The wife and husband may get back together after divorce by khuluk. In such case, they must remarry and repeat the solemnisation (nikah) ceremony. The husband must pay the dowry or mahr to the wife once more.
6. A divorce by way of khuluk is not viewed or counted as a talak. It does not reduce the number of talak left in a marriage. For instance, a husband may have divorced his wife on two separate occasions. If the husband afterward divorces the wife by way of khuluk, this last divorce does not count as the third or final talak, or even talak bain kubra. After this previous divorce (by khuluk), the husband can immediately remarry his wife.
7. If the wife has been divorced by way of khuluk, she does not have the right to receive nafkah iddah because there was no iddah period during which the wife and her husband may reconcile. However, the Syariah Court and the Appeal Board have held that she must receive mutaah from her husband.
8. Eventually, a divorce by way of khuluk has no bearing on the issues of division of marital assets or custody of the minor children of the marriage. This will be decided by the court under established principles and practices.