Both husband and wife’s consent is necessary for khula, or else the ruler will separate them.
Allah Almighty says:
فَلَا جُنَاحَ عَلَيْهِمَا أَن يُصْلِحَا بَيْنَهُمَا صُلْحًا ۚ وَالصُّلْحُ خَيْرٌ [An-Nisa: 128]
“There is no blame upon them if they reconcile between themselves, and reconciliation is best.”
➊ Just as the Prophet ﷺ separated Thabit رضي الله عنه and his wife. The Prophet ﷺ ordered him:
اقبل الحديقة وطلقها……
“Accept her garden and divorce her.”
➋ وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا إِن يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّهُ بَيْنَهُمَا [An-Nisa: 35]
“And if you fear dissension between the two, appoint an arbitrator from his people and an arbitrator from her people. If they desire reconciliation, Allah will cause it between them.”
And if reconciliation is not possible, according to the majority of scholars, these arbitrators have the authority to separate them.
[Fath al-Qadeer: 363/1, Tafsir al-Lubab fi Ulum al-Kitab: 368/6, Tafsir al-Razi: 75/10]
And this is annulment of marriage.
➊ Allah Almighty says:
الطَّلَاقُ مَرَّتَانِ [Al-Baqarah: 229]
Then the mention of افتداء (paying compensation to obtain khula) came, then He said:
فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ [Al-Baqarah: 230]
Therefore, if khula were a divorce, it would be a divorce after which a woman can only be lawful for her former husband if she marries another man, making it the fourth divorce. So it is understood that khula is not divorce but annulment.
➋ Hazrat Habiba bint Sahl Ansariyah رضي الله عنها said to the Messenger of Allah ﷺ: O Messenger of Allah! Everything he gave me is still with me. So the Prophet ﷺ told Thabit: “Take it from her.” Then he took (that property) وجلست فى أهلها “and the woman went to her family.”
[Muwatta: 564/2]
It is understood that after separation, Hazrat Habiba رضي الله عنها went to her parental home. Therefore, if khula were divorce, she would have observed iddah in her husband’s house. Since she did not do so, it is proven that khula is annulment.
➌ The iddah of khula is one menstrual cycle (as will be mentioned later), whereas the iddah of divorce is three menstrual cycles. Therefore, it is annulment.
➍ In khula, the husband can take back the property he gave to the wife, whereas in divorce he cannot.
➎ In khula, the man does not have the right of reconciliation, whereas in divorce the man is more entitled to reconciliation, as stated in the Quran:
وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ [Al-Baqarah: 228]
“And their husbands have more right to take them back.”
➏ When the Prophet ﷺ told Thabit رضي الله عنه to grant khula to his wife, he did not ask whether she was menstruating or whether he had intercourse with her during her purity, although divorce is forbidden in both these states. Therefore, since the Prophet ﷺ did not ask anything but simply ordered khula, it is understood that khula is not divorce.
(Ibn Taymiyyah) Khula is annulment of marriage.
[Al-Fatawa: 31/3 – 35]
(Ibn Qayyim) Certainly, it is not proven from any companion that khula is divorce. Furthermore, they emphasize that “divorce after intercourse brings about three rulings which are not all present in khula.
➊ In divorce, the man has more right to reconciliation.
➋ Divorce is counted up to three times. After this number is completed, the woman is not lawful for the first husband until she marries another man and has intercourse with him.
➌ The iddah of divorce is three menstrual cycles, and it is undoubtedly proven by text and consensus that there is no reconciliation in khula.
[Zad al-Ma’ad: 197/5]
(Khitabi) says that Hazrat Ibn Abbas رضي الله عنهما argued that khula is not divorce based on Allah’s statement:
الطَّلَاقُ مَرَّتَانِ [Al-Baqarah: 229]
[Ma’alim al-Sunan: 255/3]
(Al-Albani) also considers this correct.
[At-Taliqat ar-Radhiya ‘ala ar-Rawdah: 273/2]
Jurists have differed on this issue:
(Majority, Malik, Abu Hanifa) Khula is divorce. Hazrat Ali رضي الله عنه, Hazrat Uthman رضي الله عنه, Hazrat Ibn Mas’ud رضي الله عنه, Imam Hasan, Imam Shu’bi, Imam Nakha’i, Imam Ata, Sa’id bin Musayyib, Imam Shurayh, Imam Mujahid, Imam Makhool, Imam Zahri, Imam Sufyan and according to one narration Imam Shafi’i رحمهم الله all hold this position.
(Ahmad) Khula is annulment of marriage. Hazrat Ibn Abbas رضي الله عنهما, Imam Tawus, Imam Ishaq, Imam Abu Thawr, Imam Ibn Mundhir and according to one narration Imam Shafi’i رحمهم الله all have this view.
[Tafsir al-Lubab fi Ulum al-Kitab: 142/4, Al-Um: 114/5, Bada’i’ al-Sana’i’: 151/3, Nayl al-Awtar: 344/4, Al-Mughni: 250/11]
Those who say khula is divorce have used the hadith of Thabit bin Qais رضي الله عنه found in Sahih Bukhari, in which the Prophet ﷺ ordered Thabit: طلقها تطليقة “Divorce her.”
[Bukhari: 5273]
The answer given is that here the word divorce is meant in its literal sense (i.e., let her go), not in its technical or legal sense.
Its iddah is one menstrual cycle.
➊ In a narration from Hazrat Ibn Abbas رضي الله عنهما, when the wife of Thabit bin Qais took khula from him:
فامرها النبى صلى الله عليه وسلم ان تعتد بحيضة
“The Prophet ﷺ ordered her to observe one menstrual cycle of iddah.”
[Sahih: Sahih Tirmidhi: 936, Abu Dawood: 2229, Kitab al-Talaq: Bab fi al-Khula, Tirmidhi: 1185]
➋ In the hadith of Hazrat Rabi’ bint Mu’adh رضي الله عنها, the Prophet ﷺ ordered the wife of Thabit to observe one menstrual cycle of iddah.
[Sahih: Sahih Tirmidhi: 945, Tirmidhi: 1185, Ibn Majah: 2085, Nasa’i: 3498]
➌ From Hazrat Ibn Umar رضي الله عنهما it is narrated:
عدة المختلعة حيضة
“The iddah of a woman who has taken khula is one menstrual cycle.”
[Sahih Mauquf: Sahih Abu Dawood: 1951, Kitab al-Talaq: Bab fi al-Khula, Abu Dawood: 2230]
(Ibn Qayyim) has established the iddah as one menstrual cycle.
[A’lam al-Muwaqqi’in: 88/2]
