How Can a Woman Stipulate in Her Marriage Contract Her Right to Initiate Divorce?

Answered by Shaykh Umer Mian

Question: Assalamu alaykum

How can a woman stipulate in her marriage contract her right to initiate divorce?

Answer: Wa alaikum as-salam wa rahmatullahi wa barakatuhu

Please read the article below. It should provide sufficient answer, in sha Allah.

Wassalam,
Umer

The Difference between Khul` and Divorce
Answered by Shaykh Muhammad ibn Adam al-Kawthari

Question: I was wondering what the fiqh is regarding the difference between khula and divorce. I also wanted to know the fiqh regarding putting a statement in a marriage contract as follows: “I reserve the right for you to divorce me if you observe your right to take another wife.” (meaning is it legal, halal to have a statement, and if so, what would be the proper wording of such a statement?)

Answer: In the name of Allah, Most Compassionate, Most Merciful,

The only difference between divorce and Khul’ is that a divorce is given by the man without demanding a financial payment form the wife, where as in khul’, the wife receives the divorce in return for a financial payment. This is usually in a situation where the husband in unwilling to give the divorce and the wife persuades him to issue the divorce in return of this payment.

It should be remembered that a Khul’ can not come into effect without the consent and agreement of the husband. The wife can persuade him to enter into the agreement of Khul’ but not enforce it upon him. For more details see the recent post on Khul’ on the Hanafi forum.

With regards to stipulating a right of divorce for the wife in the case where the husband fails to fulfill a certain promise or condition, this is permissible and known in the fiqh terminology as Tafweed.

If this tafweed takes place at the time of contracting the marriage, meaning the wife stipulates the condition, and demands the right to divorce her self in the case of non-fulfillment, it will be valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafweed, and the man accepts this. If the opposite takes place, it will be void.
(See: Ibn Abidin, Radd al-Muhtar, 2/285 & Bahr al-Ra’iq, 3/318).

So the statement of the woman would be as follows: “I give my self to you in wedlock on the condition that you do not marry again and if you do then I have a right to divorce my self” and the husband says: “I accept you in my marriage in agreement with the condition stipulated”.

In this way, if the husband was to marry again, the wife would have the right to divorce herself. (For more details, see a previous post on ‘placing conditions in a marriage contract’.

And Allah knows best

Muhammad ibn Adam al-Kawthari, UK
www.daruliftaa.co.uk