Who Gets Custody of the Children After Khula?

Question: A lady has described her problem — she wants to take khula and remarry — who will get the children?

Solution: My first request is this — on what basis is khula being sought, that is the foundation of your case. If your intention is that you will take khula and remarry, and along with that you want the children's future to remain tied to you, then your first step — the claim you file to obtain khula — must be strong. When filing a khula claim, my statement that, 'I hate him, khula will be granted' is often taken at face value — quite right, I did say that, and I stand by it.

If your purpose is only to obtain khula, then it's enough for you to simply tell the court, I hate him, I want khula — that's enough. But if your purpose is that after taking khula you also want to remarry and keep the children with you, then in the khula suit you need to take those grounds on the basis of which you can prove, in a guardianship petition, that your husband, the ex-husband, is not fit to raise the children, is not fit for the children's welfare, is not a suitable person, is not an appropriate person, that the children's welfare lies with me — you should know to avoid lying. That the husband is suspicious-minded, that the husband isn't raising the children properly, that I have to ask my parents for money to cover their expenses, that the husband doesn't focus on their education, doesn't care about their education, that the husband is involved in various intoxicants, uses drugs, doesn't work, sells off jewellery and spends it, beats me, and tells me to bring money from my parents.

All these, taken together, are matters that prove that this person is not the best person for the children's welfare. If you have written all these things in the khula suit, then tomorrow, when you file the guardianship petition, you will already have the grounds — that when I took khula, I took it on this basis, I did not take khula happily, I took khula out of compulsion. If my husband didn't use drugs, if my husband earned, if my husband loved the children, if he paid attention to my children's education, there would have been no reason for me to take khula from him. You need to write all these matters into it.

Now comes the next step — although I explained in great detail in my video what the various reasons are, I described it — let me state it again. After khula, the woman remarries, or the man remarries — the first step is: who does she marry? If, after taking khula, the woman marries someone who has a direct blood relationship with the children too, then the law is in the woman's favour. There are categories here too — if it's a minor, and specifically a girl among the children, then you'll get refuge if the woman marries within a blood relation, marries a close relative as her second husband — then the court will give you refuge.

The same applies for the man. Now if the man remarries within a blood relation, a relative who is also a direct relative of the children, by the same blood-chain, then again it makes no difference — but if the woman remarries, and among the children there is a girl, and she marries a man who is neither among her husband's relatives nor among her own relatives, then the law does not help you — then the law will go against you, because your daughter is 'na-mahram' [not within the prohibited-degree relationship requiring no veil] to that man, and appointing someone as guardian of any minor who is na-mahram in any way is not in the minor's welfare.

Now let me answer your question this way — first you need to take all these grounds in the khula suit, and after that, when you file the guardianship petition, whether before or after remarriage, if you have a daughter, remarry someone with whom you have a blood relation, or with whom your ex-husband has a blood relation, someone to whom that girl is not na-mahram.

Let me clarify 'na-mahram' a little — I'm using it in the sense of someone who has no relation at all. I'm using 'mahram' in the sense of someone who, in some way or other, is a close relative — whether through the wife's side, an ex-wife's relation, or through the husband's side, an ex-husband's relation — if there's some relation to the girl coming out, then there are no complications in that. But if you marry someone who has no blood relation at all to you, to your daughter, then it's difficult for you.