What is the ruling on Khul' (divorce for a fee) when the agreed-upon compensation is unlawful (Haram)?
General Chapter
Al-Mughni
Book of Khul' (Redemption Divorce)
Primary text
If a man divorces his wife by Khul' in exchange for something known to be unlawful by both parties, such as a free man, wine, a pig, or carrion, the divorce is treated as if it were without compensation, and the husband is entitled to nothing. This view is held by Malik and Abu Hanifa. The reasoning is that the husband's right over the wife's private part (Bida') is not assessed in value when it leaves his ownership. Therefore, if he agrees to receive something without value (or prohibited), he receives nothing, similar to cases of simple divorce or divorce conditional upon an act that is performed.
Supporting text
Al-Shafi'i holds that the wife owes the husband the dower equivalent (Mahr al-Mithl) because the exchange involves the private part, and if the compensation is forbidden, the equivalent dower becomes obligatory, analogous to a marriage contract. Furthermore, if the Khul' was on the condition of receiving a slave who turns out to be free, the wife does not have to pay because the husband did not agree to an exchange without an assessed value, leading to a return based on deception (ghurur). Here, however, he willingly accepts something without value.