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Fatwa CenterDivorce during a Purity in Which Intercourse Occurred
Question
My husband gave me a divorce whilst I was in a state of purity but after we were intimate. I’ve been in the state of purity for one year now since I’ve been breastfeeding my baby and currently I don’t menstruate (my menses typically return after I wean my child). Is this talaq valid? If so, how long is my idda (90 days or the length of my cycle before I was pregnant)? Also, if this is a valid talaq, is he obliged to pay wages to me for breastfeeding my child?
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 
is His slave and Messenger.
Divorce during a purity in which intercourse occurred is considered an innovated and prohibited form of divorce. If your husband wished to divorce you, he should have waited until you had your menstrual period, then after you became pure, he could divorce you before having intercourse.
According to the legal opinion we adopt, although this type of divorce is religiously impermissible, it is still legally valid. This is the view of the majority of scholars. Ibn Qudāmah
said in al-Mughnī: “If one divorces in an innovated manner - such as divorcing a woman during her menses or during a period of purity in which he had intercourse with her - then he has sinned, but the divorce is effective according to the opinion of the majority of scholars.” [End quote]
The ‘Iddah (waiting period) for this type of divorce ends after the completion of three menstrual cycles. Therefore, it is necessary to wait until your period returns and three full cycles are completed.
Furthermore, you also have the right to claim payment for breastfeeding the child. The Kuwaiti Encyclopedia of Fiqh reads: “A mother is entitled to request fair compensation for breastfeeding, whether she is still married to the father or is no longer in his marriage, based on the verse: ‘If they breastfeed (your children) for you, then give them their due payment’ [Qur’an 65:6]. This is the view held by the Shāfiʿīs and Ḥanbalīs.” [End quote]
Allah knows best.
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