What is Khuluk?
Khuluk is an Arabic term that literally means to release or to allow to leave or to exonerate or to set free. In the context of Muslim matrimonial law, khuluk refers to divorce by redemption or, in Malay, “tebus talak”.
Muslim law allows a wife to ask to be released or set free from the bond of her marriage to her husband. If her husband refuses to pronounce the divorce (talak), her marriage may be dissolved by way of khuluk, i.e. by the husband pronouncing the talak upon the wife making a payment to the husband. In Singapore, divorce by way of khuluk or divorce by redemption or tebus talak is expressly allowed and provided for in Section 47 of the Administration of Muslim Law Act (Cap. 3) (AMLA).
The dissolution of a marriage by way of khuluk requires the consent of both the husband and the wife, but the amount to be paid by the wife to the husband is to be assessed and determined by the Court: Section 47(4) of AMLA.
Therefore, a divorce by khuluk originates from a wife’s application for divorce.
Divorce by khuluk is expressly permitted in the Holy Quran. The Yusuf Ali translation of Verse 229 of Chapter 1 (Surah Baqarah) reads:
“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 God. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by God there is no blame on either of them if she give something for her freedom. These are the limits ordained by God; so do not transgress them. If any do transgress the limits ordained by God such persons wrong (themselves as well as others).”
The Prophet (pbuh) and a number of Muslim scholars have subsequently provided clarification and set the rules on the subject.
The Principal Rules Of Khuluk
- While a wife is permitted to ask to be divorced from her husband by way of khuluk or independently of khuluk, she must do so only on permissible grounds, i.e. permissible under Muslim law. For example, a wife may ask to be divorced from her husband when she genuinely feels that, despite her best efforts, she has not been able to correct her husband’s conduct which offends the tenets or teachings of Islam, for example, when the husband refuses to or does not perform the daily obligatory prayers or refuses to or does not observe the obligatory fast in Ramadan.
- It is generally accepted that in a divorce by khuluk, the amount to be paid by the wife to the husband (the redemption amount) should preferably not exceed the amount of the dowry (mahr) which was agreed to or which was paid by the husband to the wife at the time their marriage was solemnized. Some Islamic scholars even hold the view that anything more is forbidden (haram). Alternatively, the wife and the husband may mutually agree on the redemption amount.
- A wife requesting a divorce by way of khuluk must be an adult of sound mind. A minor or a person who lacks mental capacity is not entitled to seek and enter into a divorce by khuluk. A minor requires the intervention of and must be represented by her wali or lawful guardian. A wife who lacks mental capacity requires the intervention of someone who is permitted by law to be her litigation representative.
- A husband is not permitted to apply for or initiate a divorce by way of khuluk. The application must and can only come from a wife. In other words, there can never be a divorce by khuluk at the instance of a husband.
- A divorce by way of khuluk may not be revoked by way of reconciliation (rujuk). A divorce by khuluk effects a talak bain sughra. In other words, if the husband and the wife wish to get back together after their divorce by khuluk, they must remarry and undergo the solemnization (nikah) ceremony again. As in all marriages, the dowry or mahr must be paid once again to the wife.
- A divorce by way of khuluk is not considered and does not count as a talak and it does not reduce the number of talak left in a marriage. For example, a husband may have divorced his wife on 2 separate occasions in the past. If he subsequently divorces his wife by way of khuluk, this last divorce does not count as the 3rd or final talak or talak bain kubra. In other words, after this last divorce (by khuluk), the husband may immediately remarry his wife.
- A wife who has been divorced by way of khuluk is not entitled to receive nafkah iddah as there is no iddah period during which she and her husband may reconcile. The Syariah Court and the Appeal Board have both held that that she is however entitled to receive mutaah from her husband.
- Finally, a divorce by way of khuluk has no bearing on the issues of division of matrimonial assets or custody of the minor children of the marriage which will be decided by the Court in accordance with established principles and practices.