Is the dissolution of marriage by Khul' (Redemption) contingent upon the presence of a judge (Hakim)?
General Chapter
Al-Mughni
Book of Khul' (Redemption Divorce)
Primary text
The dissolution of marriage through Khul' does not require the presence or authorization of a judge. This position is affirmed by Ahmad. It is reported that Umar and Uthman, may Allah be pleased with them, permitted Khul' without the Sultan's involvement. This view is held by Sharih, al-Zuhri, Malik, al-Shafi'i, Ishaq, and the Ahl al-Ra'y (Proponents of Opinion). The evidence supporting this is the practice of Umar and Uthman. Furthermore, Khul' is a mutual transaction (mu'awadah), and thus does not necessitate the involvement of the ruler, similar to sale contracts and marriage contracts. It also constitutes the termination of a contract through mutual consent, resembling mutual release (Iqalah).
Supporting text
Hasan al-Basri and Ibn Sirin maintain that Khul' is invalid unless performed in the presence of the Sultan.