Under Islamic law a man and a woman are married by way of a contract, as with all contracts a party has the right to bring that contract to an end. The power to end a marriage contract is given to the man on the basis of Surah 2, verse. 229   which allows him to initiate and conclude the divorce which would being to an end the contract and by invoking the talaq al ahsan and hasan which then followed by what I would call the cooling off period, that being the iddat period in which the man may seek to revoke his intention to repudiate the contract. This cooling off period gives rise to a right to revoke the intention to terminate the marriage contract, unless it has occurred for the 3rd time, or the man has used the talak al biddat. Given that God has made it clear that the only difference between men and women is piety[1] it is only fair that then God gives women to terminate the marriage contract and he has again by way of  verse 2:229[2], The process is different to when a man seeks to terminate the contract, as when a man seeks to go down this path  he is obliged to pay either half or the full amount  of the Dower depending on whether consummation has taken place as well as any mainataince. Now on a woman seeking to terminate the contract it is only equitable and fair that firstly that the man is released from his obligations to her of the Dower and any mainataince. To ensure parity when it comes to bringing the contract to an end, the woman now has to pay the man, the buyout or as some have called it the ransom[3]. The usage of the wording ransom is an unfair analogy in my opinion as with any contract which is brought to an end there is usually an early termination penalty clause one only has to look at mobile phone contracts in today’s world. To ensure equality and in my opinion elevate the status of the woman to the mans, she now has to pay him, otherwise it would suggest that a woman’s inability is a reflection of her weakness, that is not what is intended when one looks the Qur’an. Secondly the payment has to viewed in the same light of the dower which is given to the woman on the basis of her sharing intimacy, why should a man not be compensated for doing the same and thirdly it is not the man seeking to terminate the contract.

Talaq al-Mal is the  divorce for a monetary consideration or as Nasir (2009) notes “buying her freedom”[4] and a Khula is viewed as seeking a divorce for monetary compensation, in reality it is semantics in my opinion as in both money is exchanged for the early termination of the contract and nothing more, under the Talaq al-Mal wife would be returning an item of monetary value or another object which was given to her and in the Khula it would be agreeing on a figure to be released from the contract, but regardless of the wording the bottom line is some form of compensation by way of consideration has to be given to the man who is not the one who is seeking to terminate the contract.

The views expressed in this article are the personal views of Yasin M Din- Barrister at Law

References

[1] [1] verse 49:13 ...Surely the most honourable amongst you in God 's sight is the most pious amongst you”.

[2] If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom

[3] Jawad, Haifaa (1998) The Rights of a Women in Islam, Macmillan Press (UK) Page 83

[4] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 130