Is it possible to initiate khul' before requesting divorce from my husband?
Could you please explain whether khul’ can be initiated by a woman only if the husband refuses to divorce her? What if she begins the process without first requesting divorce? If the couple has a young child, who takes custody of the child? If the father is in the habit of drinking, could the mother get permanent child custody? Are Islamic rules the same on this matter in all Muslim countries or do they differ? Can cases like these be settled in one’s place of residence, which is not in the country of one’s nationality?
Khul’ denotes the termination of marriage at the wife’s request in return for the remuneration of the husband. She does not have to present a case of an unsuccessful marriage in order to start the relevant proceedings. It is sufficient that she feels that she cannot continue with the marriage. When a woman Companion of the Prophet (peace and blessings be upon him) asked him to end her marriage to her husband, the Prophet (peace and blessings be upon him) informed the husband that his wife was unwilling to continue the marriage. The Prophet (peace and blessings be upon him) did not take issue with the man about anything he did or did not do. In some reports, the woman clearly said that she had nothing against her husband with regard to his behavior, manners or religion. She simply did not feel that the marriage gave her any fulfillment. The khul’ does not have anything to do with the man’s attitude to the termination requested by his wife. It is simply one of her rights under the marriage contract. Just like the right to divorce is given to a man which allows him to terminate the contract at his own behest, the woman is given the same right through khul’.
Khul’ is a process in which the woman has to forfeit some of her rights under the marriage contract. She has to repay any mahr [dowry] she received from her husband. In divorce, she receives any outstanding part of her mahr. Here the reverse is true. But this is only fair, because in all cases of the termination of marriage under Islamic law, the man loses financially because he has to pay the outstanding mahr and financially support his wife during her waiting period. He also has to support his children when they are in her custody. He then pays the expenses of a new marriage, if he desires one. Hence, when a woman wants to terminate her marriage, she forfeits her mahr.
If a woman has a strong case for divorce, as in the case of suffering abuse from her husband and he refuses to divorce her, she may file for divorce on grounds of abuse. This is a totally different matter, one in which she has to prove her case. If proven, the judge rules in her favor, and she is entitled to all the rights of a divorcée. Normally, divorce or khul’ proceedings could be started in one’s country of residence but this needs to be confirmed by the parties concerned by consulting a lawyer in that country. It is always better to learn one’s rights under the law before starting any legal proceedings.
Child custody is an entirely different matter. It is automatically given to the mother when the children are very young and they remain in her custody until they are able to see to their own interests through such things as eating, grooming, bathing, etc… They are afterwards allowed to choose which parent to live with though this is not permanent. A child may choose to be with his or her father or mother at any time, and then may change his or her mind once or twice or any number of times. But their living expenses are the father’s responsibility.
The mother remains in custody of her children unless she marries someone else. In this case, she forfeits her right to custody which passes to her mother. Islam is unparalleled in this matter. Custody is not given to the father unless there are no women to take care of the children. The order of the right to custody is: the child’s mother; the mother’s mother; the father’s mother; the child’s sister, if she is old enough to look after him or her; the mother’s sister; the father’s sister; and so forth.
This is the situation under Islamic law, but what different countries apply may be totally different. One has to look for the relevant legislation of one’s own country. If custody is claimed by a father under the law in his own country and he is known to be a drunkard, there may be room for depriving him of any rights to custody. Needless to say, this is much easier in a country that applies Islamic law than one that applies man-made law.