How can I explain to my students the difference between faskh, talaaq and khul‘?

Praise
be to Allah

Separation between the spouses can only be done in one of two
ways: talaaq (divorce) or faskh (annulment). 

The difference between them is that talaaq is the ending of
the marital relationship by the instigation of the husband, and it involves
specific, well-known phrases. 

As for faskh, it is annulment of the marriage contract and
dissolution of the marital bond completely, as if it never happened, and
this can only be done by means of the verdict of a qaadi (judge) or a shar‘i
ruling. 

The differences between the two include the following: 

1.

Talaaq can only be done by means of the husband’s utterance,
by his choice and with his consent. As for faskh, it is not uttered by the
husband, and is not conditional upon his consent or choice. 

Imam ash-Shaafa‘i (may Allah have mercy on him) said: Any
case in which it is ruled [by a qaadi] that a couple be  separated, when the
husband did not utter words to that effect and did not want it… this is a
separation and be called talaaq. End quote. Al-Umm (5/128). 

2.

There are many reasons for talaaq, and it may occur for no
reason except that the husband wants to leave his wife. 

As for faskh, it can only occur when there is a reason that
makes it necessary or permissible. 

Examples of reasons for which the marriage contract may be
annulled (faskh) include the following: 

·       

Lack of compatibility between the spouses, according to
those scholars who regard that as one of the conditions for the marriage
contract to be valid.

·       

If one of the spouses apostatises from Islam and does not
come back to it.

·       

If the husband becomes Muslim and his wife refuses to
become Muslim, and she is a mushrik (polytheist), not one of the people of
the Book (i.e., Jewish or Christian).

·       

When li‘aan occurs between the spouses [li‘aan is a
process done where the husband accuses the wife of adultery and she denies
it, and each swears oaths invoking the curse of Allah if he or she is
lying].

·       

Financial difficulty on the part of the husband, and
inability to spend on his wife’s maintenance, if the wife requests annulment
of the marriage.

·       

Presence of a defect in either spouse that prevents
intimacy or creates revulsion between them. 

3.

The husband has no right to take his wife back after faskh
(annulment). He can only take her back with a new marriage contract and with
her consent. In the case of talaaq, she is still his wife so long as she is
still in ‘iddah following a revocable talaaq (i.e., first or second talaaq),
and he has the right to take her back after the first or second talaaq,
without a new marriage contract, and regardless of whether she agrees or
not. 

4.

Faskh is not counted as one of the three talaaqs that the man
may issue. 

Imam ash-Shaafa‘i said: Any faskh that occurs between the
spouses is not counted as a talaaq, whether a first or subsequent talaaq.
End quote from al-Umm (5/199). 

Ibn ‘Abd al-Barr said: The difference between faskh and
talaaq, even though each of them is a separation between the spouses, is
that if the spouses get back together after faskh, then they will get back
together on the basis of the original marriage and the woman still has three
talaaqs left with her husband, whereas if he divorced her by talaaq then
took her back, she has two talaaqs left with him. End quote from al-Istidhkaar
(6/181). 

5.

Talaaq is the husband’s right, and it is not dependent upon
the ruling of a qaadi (judge), although it may occur by mutual consent
between the spouses. As for faskh, it depends upon a shar‘i ruling or the
verdict of a qaadi. Faskh cannot be done simply by mutual consent between
the spouses, except in the case of khul‘. 

Ibn al-Qayyim said: The spouses do not have the right to
agree to annul the marriage without compensation (i.e., khul‘), according to
scholarly consensus. End quote from Zaad al-Ma‘aad (5/598). 

6.

If faskh occurs before consummation of the marriage, the
woman is not entitled to anything of the mahr (dowry). In the event of
talaaq before consummation of the marriage, she is entitled to half of the
agreed-upon mahr. 

As for khul‘, this refers to when the woman asks her husband
to separate from her in return for financial compensation or giving up her
mahr or part of it. 

The scholars differed as to whether khul‘ is faskh (an
annulment) or talaaq (a divorce). What is more likely to be correct is that
it is faskh. This has been explained previously in the answer to question
no. 126444.

[Based on explanations of the differences in the following
sources:


Al-Manthoor fi’l-Qawaa‘id
(3/24)


Al-Fiqh al-Islami wa Adillatuhu
(4/595)


Al-Mawsoo‘ah al-Fiqhiyyah al-Kuwaitiyyah
(32/107-113, 32/137)


Fiqh as-Sunnah
(2/314)] 

And Allah knows best.