Khola': Inability to repay dower and the custody of children

Q316 :It is possible for a woman to demand divorce, provided that she repays her dower or meher, to her husband. What if she does not have the money to repay? Does this mean that she cannot be divorced? In case the divorce is granted, who has the custody of the children?

A316 : The reader is referring to what is known in Islamic terminology as "khola' ". This is termination of the marriage at a woman's request. She does not need to provide reasons other than that she is not happy with her marriage and that she cannot or is unwilling to continue to be married to her husband. There is a reference to such a situation in the Qur'an in Verse 229 of Surah 2. A precedent took place at the time of the Prophet when Thabit ibn Qais's wife came to the Prophet complaining of her marital situation. She stated clearly that she had nothing to talk against her husband, neither in his manners nor in his religious attitude. She simply was not happy, married to him. Thabit ibn Qais had given her a garden as a dower, and the Prophet asked her whether she was willing to return it to him. She said she would and the Prophet told the man to accept the garden and divorce her. There are differences between khola' and divorce. One is that the waiting period of the woman lasts only until she has had one menstruation period, to make sure that she is not pregnant. Secondly, her husband does not have a right to reinstate marriage during her waiting period. Thirdly, in divorce, she is entitled to have all her dower, because the divorce is initiated by the man who had paid the dower. Whereas in khola' she has to pay something to her husband. This is fair because the dower, or meher, is paid by the husband to the wife in return for a gain or benefit he receives as a result of the marriage. When the marriage is terminated at the wife's request, then that benefit or gain is no longer there. He becomes entitled to compensation. In the case mentioned in the Hadith, the compensation was a refund of the dower itself. It is open to the man and his wife to agree on a lesser compensation. Most scholars agree that the compensation may be more than the dower itself, but same scholars say that this is not permitted. As you see, if the woman does not have something to compensate her husband for the termination of the marriage, then she is asking him to forgo the benefit he receives from the marriage for nothing. All scholars would advise such a man to look at the situation carefully. If his wife wants the termination because she is really unhappy and he can forgo his right to compensation, then he is recommended to do so. If he insists on having compensation, then no blame may be attached to him. She may be helped by her relatives or by the community. This is only fair. A man who does not have anything to give as a dower is not offended if people refuse to accept his proposals for marriage. Similarly, a woman that cannot compensate her husband for what he loses as a result of the termination of marriage cannot feel aggrieved if he refuses. But in these matters, we are recommended to show forbearance and kindness to others. Even though we may be unhappy with termination of the marriage, as a community we should look into helping her. Custody for the children in Islam is given to the mother when the children are very young. This is on the condition that the mother does not marry again. When the child reaches an age when he or she no longer needs to be looked after by the mother, then he or she is given the choice to join either parent until a boy attains puberty or a girl gets married.

Our Dialogue ( Source : Arab News - Jeddah )