Monday, November 20, 2017 - 1 Rabi' al-Awwal 1439
Home » Fatwas » Society & Family » Khul'a

I am seeking khul' from my husband. What is he entitled to take back?

I am seeking khul' from my husband. What is he entitled to take back?

Answer

The opinion implemented for fatwa and acted upon in Egyptian courts is as follows:
Based on the opinion of some scholars, a woman who is divorced through khul' [divorce initiated by the wife in return for remuneration to the husband] must return the mahr [dowry] she received from her husband and relinquish her legal financial rights. The purport of this is to alleviate a husband's financial burdens resulting from his wife's unilateral request for separation.

The financial legal rights waived by the wife in the event of khul'

Article 20 of Law no. 1 /2000 states: "Both spouses may mutually consent to khul'. If not, the wife may file for khul' by waiving all her legal financial rights and returning the mahr he gave her, and the court orders for her divorce."

In marriage, a man pays a mahr (its advanced as well as its deferred portions) in exchange for sexual intercourse with his wife and in return for submitting herself to him. Therefore in khul', a woman must return to her husband anything which has been established as a mahr. Moreover, she must waive her right to alimony and waiting period expenses. The legal objective in regulating khul' is to relieve a woman from staying in a marriage she loathes while at the same time alleviate the husband of obligations and expenses.

However, the legal financial rights that are waived by khul' do not include a woman's right to custody or child support. Egyptian lawmakers strived to select the rulings derived from Islamic jurisprudence that best strike a gender equity balance. These include compensation in exchange for khul' (though it was left unconditional by scholars) and protecting women from potential financial exploitation by their husbands by limiting this compensation to only those legal financial rights that are established by virtue of the marriage contract. This was also meant to prevent arbitrary compensations demanded by husbands that may undermine the possibility of khul'. On the other hand, the law prevents women from taking unwarranted advantage of khul' to expropriate their husband's wealth, burdening them with financial obligations which, at times, are exaggerated.

The registry of furniture

The prevailing apparent formula of the registry of furniture places a wife's right to the items listed in the registry under her husband's trust. Consequently, if a woman buys her household furnishings with the advanced portion of her mahr, whether she received it in cash or in the form of furnishings provided by the husband, she is exclusively entitled to it after consummation of marriage and she is entitled to half of it if the marriage was not consummated. However, it is usually the case that these items furnish the matrimonial house which the husband either owns or leases; they are therefore effectually in his possession. In an age when religious adherence has been significantly diminished and husbands forfeit spousal rights, it has become a social necessity to draw up a list containing the furnishings in the matrimonial home to guarantee a woman's right to these items in the event of disputes. Many people draw up this list which they equate with a civil right that is tantamount to a debt owed by the husband to his wife. However, in many instances, a woman may exploit this right by falsely denying that the registry constitutes her dowry. In many instances, the articles included in the registry are the real mahr paid by the husband and the mahr registered in the marriage contract is merely fictitious. People often resort to this practice to pay the nominal registration fee upon the sum documented in the contract.

Both spouses may contribute towards buying the articles listed in the registry and in some cases it is the wife who buys all the furnishings with her own money or with her family's help. The ruling depends on these details. If the husband claims that all or some of the articles listed in the registry constitute the mahr and it is proved, through incontrovertible evidence or the testimony of witnesses, that his allegations are true, then the wife must return these items to her husband based on the implemented opinion for both fatwa and law. This is based on the fact that the registry and its contents are no longer considered a debt owed by the husband to his wife, but compensation in exchange for sexual intercourse and in return for the wife submitting herself to her husband. In this sense, the registry is a mahr that must be returned to the husband. But, if the court cannot establish that the items in the registry constitute all or part of the mahr, then they are considered the wife's exclusive right, regardless of whether she is divorced through khul' , and consequently she is not obliged to return them to the husband.

The ruling

Based on the above, the ruling that the registry of household furnishings constitutes all or part of the mahr is left to the discretion of the judge whose decision is based on the evidences and documents before him. If it is proved that all or part of the contents of the registry of furniture constitute the mahr, he will judge in the husband's favor.
 

Related links
» Is it possible to initiate khul' before requesting divorce from my husband?
» Repayment of mahr in case of divorce filed by the wife
» Returning to husband during the idda after khul'
» A woman filing for divorce, what is the procedure?
» Is the (shabka) jewelry offered as token of love to the bride returned after she files for divorce?