Seeking to terminate the marriage through khul`
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Question
> Can the amount on the settlement for the Khula divorce be less than
> the dowry amount the husband has given the wife? A woman is
> contemplating a khula divorce but the problem is the dowry is a house
> that has not been finished being paid mortage and the woman in the
> case, if she declares khula she loses all the settlement in this
> instance the house. See the husband has not given her anything in the
> marriage i.e. financially except that house is under her name and he
> is paying the monthly mortage on it. Will it be allowed for the wife
> to sell the house and take the proceedings and give some to the
> husband and take some herself and thereafter declares khula divorce?
Answer
Assalamu 'alaikum wa rahmatullah dear sister,
I pray this message finds you in the best of health and iman, inshaAllah. May Allah subhanahu wa ta'ala aid you in this stressful period of your life, and may He help you approach this issue in the way that would be most pleasing to Him.
The first thing that must be clarified is that a woman may not declare divorce (talaq or khula), unless she has had this right stipulated in her marriage contract, or if she was granted this right by her husband at some other point in time (before or after the marriage). However, a woman may seek annulment of her marriage in certain situations, and there is a procedure that must be followed for this to occur. It is best that one consult a local, reliable scholar in order to see to how this can be done. The following link will help clarify what happens when a husband refuses to divorce his wife:
Husband refuses to divorce: What can the wife do?
http://qa.sunnipath.com/issue_view.asp?HD=1&ID=1841&CATE=11
Since you say that your husband does not want to declare divorce, I am assuming that this means he has not agreed to either a talaq or a khula. If you are able to have your husband agree to grant you a khula, it is up to *you and him* to come to an agreement on what you will give him in return for this. The amount you give can be less than the mahr, or the value of the mahr itself; it would be disliked (makruh) for your husband to ask for more than the mahr.
Lastly, I understand that given the circumstances, it must be very hard to sit down and communicate properly with your husband. Still, it would be best if you could find a way to discuss these issues in a calm and dignified manner. Perhaps you could find a mediator that you both trust to help facilitate the discussion on how you should proceed further with your marriage? If separation is really the answer to your marital situation, it will help if you can have someone sit down with both of you, if only to help your husband realize that divorce (whether talaq or khula) really is the necessary next step.
The following links may also prove helpful to you:
The Difference between Khul` and Divorce http://www.sunnipath.com/resources/questions/QA00002062.aspx
The Fiqh of Divorce
http://qa.sunnipath.com/issue_view.asp?HD=1&ID=4916&CATE=11
May Allah subhanahu wa ta'ala make this easy for you.
And Allah alone grants success.
This answer was published by SunniPath and is preserved as written. Rulings can depend on circumstances; for your own situation, consult a qualified scholar.
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