Khul', the Delegated Divorce Clause and Custody of Two Children
Reem and Tareq married in Nablus in 2012. The marriage contract recorded a prompt mahr of 5,000 JD and a deferred mahr of 10,000 JD, and contained a clause initialled by Tareq giving Reem the right to divorce herself if he took a second wife without her written consent. In 2021 Tareq married a second wife in Jordan and said nothing; Reem discovered it in 2024. They have two children, Hala, aged 9, and Omar, aged 6. Reem is a hospital nurse earning 4,000 ILS a month. Tareq works inside Israel and declares an income of 3,500 ILS, though the family's spending suggests considerably more. In January 2025 Reem moved with the children to her mother's house, filed for khul' offering to return the 5,000 JD prompt mahr, and claimed custody and maintenance. Tareq refuses the khul', counterclaims for her obedience and a return to the marital home, and argues that a working mother cannot be awarded custody.
1. Can Reem obtain khul' without Tareq's consent, and what would she give up? Is there a better route?
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Khul' is consensual in form, judicial in effect. It is an agreement by which the wife buys her release by returning what she received. Where the husband refuses, the law still allows the court to dissolve the marriage on the wife's request, but the price is the mahr she took and, in practice, her financial claims against him.
What she would lose. The 5,000 JD prompt mahr is returned, the deferred 10,000 JD is normally forfeited because khul' is a separation in which the wife gives up her financial rights, and she may be asked to waive past maintenance due to her. She cannot waive the children's maintenance: those are the children's rights, not hers, and any clause purporting to do so is ineffective.
The better route is the clause. The contract contains a valid delegation of the husband's power of divorce to the wife, conditional on his taking a second wife without her written consent. Delegation of divorce is recognised, and a condition of this kind is enforceable; it was initialled by Tareq, so proof is straightforward. Exercising it means Reem dissolves the marriage herself, by a declaration before the shari'a court, without returning anything and while keeping the deferred mahr and her other claims. The 2021 second marriage and the absence of written consent trigger it, and the delay in discovering it does not destroy the right, though she should act without further delay now that she knows.
Strategy. Plead the delegated divorce as the primary claim, with a request that the court rule on the validity of the clause and register the divorce. Plead khul' in the alternative so that, if the clause fails, she is not left in the marriage. Do not offer the deferred mahr back at any stage.
2. How will the court decide custody, and do Reem's job or Tareq's second marriage matter?
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The governing test is welfare, not fault. Custody is not a reward for good behaviour or a punishment for remarriage. The court asks who can provide the child with care, stability, schooling, health and emotional security.
The working-mother argument. It is not a rule that a working mother loses custody. The court asks whether the employment produces actual neglect - who collects the children, who is at home when they are ill, whether the mother has arranged reliable care. A nurse on shifts can answer that with a credible care plan, a grandmother, and evidence of the children's school attendance and health. Tareq's argument is an assertion, not a legal bar.
The second marriage. Taking a second wife is not in itself a disqualification either, but it is highly relevant to the practical question: he lives in another household, and the children's day-to-day care is with the mother. It also feeds his wife's claim that he breached the contractual condition.
The ages. Statutory custody limits set the default ages at which a child may choose, commonly stated as seven for boys and nine for girls, but the judge may extend custody beyond those ages where the child's interest requires it, and the limits are not automatic cut-offs. Hala at nine is at the boundary; Omar at six is well within it. For Hala the court will want a social report and, given her age, to hear her view.
Order sought: custody to the mother, with defined access for the father, and a direction that the children remain in their current school.
3. How much maintenance should be awarded, and what happens to Tareq's obedience claim?
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The obligation. A father must maintain his children according to his means and their needs. The mother's income does not extinguish that obligation; her earnings are relevant to her own maintenance claim and, at most, to how extraordinary costs are shared. Children's maintenance covers housing, food, clothing, schooling, medical care and reasonable extras.
Assessing means. A declared income is not conclusive, particularly where the earner works informally across a frontier. The court will look at bank statements, the family's actual standard of living before the separation, the cost of the second household in Jordan, any property, tax or national insurance records, and witness evidence. Where the husband conceals his income, the court may estimate it and, in practice, does so against him, since the person who controls the evidence should bear the risk of its absence. Ask for disclosure orders and draw adverse inferences from non-production.
Structure of the award. Provisional maintenance pending the case, so that the children are not left unsupported; then a monthly sum fixed from the date of the claim, with arrears enforceable. The mother's own maintenance falls away if the marriage is dissolved by khul' or by the clause, but the children's continues.
The obedience claim. This fails on the facts. A wife is not obliged to return to a home where the husband has taken a second wife without her consent in breach of a contractual condition, and she may refuse obedience where the husband has failed to provide shari'a-compliant independent housing. Her departure was justified, so she is not to be treated as disobedient and her maintenance and custody claims are unaffected. Plead the breach of the clause as the answer to the obedience counterclaim and ask for it to be dismissed with costs.