Taking back the wife in marriage during her 'Iddah after Khul’

Question

Assalaamualaikum. Shaykh, three years ago, my husband divorced me on my demand (Khul‘ [divorce requested by the wife in return for financial compensation]). He took me back the same day. Then we had a second Khul‘ about one year ago; he again took me back; this time on the second day. I did not go court to finish my marriage at the time. We did a Khul‘ at home by ourselves, but we never repeated the wedding. We did not ask any scholar regarding this, which I regret. We thought that after a Khul‘, one can take his wife back right away. We started to live together without a new marriage contract because we did not know we were supposed to do a new wedding. Now, a scholar told me that after a Khul‘, the wedding needs to be repeated, and we have to do a new wedding.

1) Is there any dispute; meaning, are there any current or past scholars or any imam who said that the husband cannot do a new marriage contract?

2) Now, since for one Khul‘, it has been one year and for the other it has been three years, did our marriage end then after the ‘Iddah period (waiting period for divorce)? If we do a new marriage contract, do I need to sit through the ‘Iddah in order to do a new wedding? I did not sit through my ‘Iddah at that time because we thought that the husband can take his wife back the same day without a new marriage contract. Or has the ‘Iddah passed and can we thus do the wedding at any time without going through the ‘Iddah?

3) I still live with him, and it has been three years now for the first and one year for the second Khul‘, so while living with him, can we do the wedding at our house where only he (husband) and I are living together?

4) Would our marriage be valid in all scholars' opinion if my husband does not tell his family, friends, and other relatives or if he only tells his mom? I wife have three brothers and two sisters, but what if I do not tell my two brothers and two sisters and friends and other relatives about our new wedding and only my one brother, father, and mom be there? If we have my brother and my father (as Wali [legal guarding]), do we still need more witnesses? Or would that be a disputed matter?

5) Can I get separated from him based on these old Khul‘? And if I can, then could there be a new marriage for me now since I did not sit through the ‘Iddah?

Answer

All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger.

If what took place was a valid Khul’, which is a divorce in return for a compensation, then most scholars held that the husband cannot take back the wife after it except with a new marriage contract. Some scholars, however, held that the husband has the right to give back the compensation to the wife and take her back in marriage without a new contract.

Ibn Qudaamah  wrote:

“There is no revocation (taking wife back) in Khul’, whether we consider it an annulment of the marriage contract or a divorce, according to the view of most scholars, including Al-Hasan, ‘Ataa', Taawoos, An-Nakhaa‘i, Ath-Thawri, Al-Awzaa‘i, Maalik, Ash-Shaafi‘i, and Is-haaq. It was narrated that Az-Zuhri and Sa‘eed ibn Al-Musayyib said, ‘The husband has the choice either to keep the compensation and (accordingly) will not have the right to take his wife back, or return it to the wife and have the right to take her back. Abu Thawr said that if the Khul’ was done with the wording of divorce, then the husband has the right to take his wife back because the right to take her back is one of the rights of divorce that is not waived by the compensation.’” [Al-Mughni, 7/331]

Based on the view of most scholars, you have been irrevocably divorced (with minor separation) from your husband with the first Khul’, and if your husband wishes to take you back, he has to conduct a new marriage contract. You do not have to wait until the ‘Iddah ends in this case because the husband may remarry his ex-wife after a Khul’ during her ‘Iddah.

Ibn Qudaamah  wrote, “If the husband accepted the Khul’ or the marriage is annulled, he has the right to remarry her during her ‘Iddah, according to the majority of scholars of Fiqh.”

There is no objection to renewing the marriage contract in the same marital house; you do not have to inform your family or his family of it. However, it is a condition that your Wali (legal guardian) and two witnesses be present while conducting the new marriage contract. The bride's Wali cannot act as a witness in the marriage contract, but her brother can.

It is permissible for you to separate from your husband based on the first Khul’, and you must observe the ‘Iddah starting from the time you separate from him.

Allah knows best.

-islamweb.net.