Khulʿ Divorce in Islamic Sharia and Iraqi Law

Abstract

This study addresses the subject of Khul’ divorce (divorce by mutual consent for consideration) in Islamic Sharia and Iraqi Law. It aims to clarify its concept, its Sharia and legal basis, and its nature, while explaining its pillars, conditions, and resulting legal effects.

The research is divided into two main sections. The first section is dedicated to defining the essence of Khul’ divorce, addressing its linguistic definition as a "removal" or "stripping away," followed by its definition in Sharia terminology as a separation between spouses in exchange for consideration paid by the wife, and finally, its legal definition as a means of terminating the marriage contract by mutual agreement of both parties in exchange for a compensation (Badal). It also examines the nature of Khul’ divorce by presenting its jurisprudential characterization and the scholarly disagreement regarding whether it is classified as a divorce (Talaq) or an annulment (Faskh), in addition to outlining the evidence of its legality from the Holy Qur’an, the Prophetic Sunnah, and Consensus (Ijma’).

The second section addresses the regulation of Khul’ divorce in both Islamic Sharia and Iraqi Law. It presents the legal framework regarding its pillars and conditions—such as the mutual consent of the spouses and the existence of consideration—as well as its effects, such as the dissolution of the marital bond and the forfeiture of certain financial rights. It also details its regulation in Islamic Sharia in terms of pillars (the spouses, the form/formula, and the consideration) and the conditions for validity, in addition to its effects concerning the waiting period (Iddah) and financial rights.

The study concludes that Khul’ divorce serves as a legitimate means to terminate a marital relationship when its continuation becomes untenable, as it allows the wife to ransom herself through consideration paid to the husband. The study further indicates that while jurists agree on the principle of its legality, they differ on certain issues related to its nature, the amount of consideration, and its conditions. The study demonstrates that Iraqi Law derived its Khul’ provisions from Islamic jurisprudence; however, certain aspects still require further legislative regulation and clarification to contribute to the protection of the spouses' rights and the promotion of family stability.