Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > The formula "you are divorced" repeated three times intending only one divorce, the second and third being emphasis
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This installment of the chapter on divorce (talaq) deals with the repetition of the formula of repudiation, the number of divorces it produces according to the husband's intention, then the oath by divorce and divorce suspended upon a condition. Ten sheets are translated here: the situations of repetition within a single sitting, the disagreement of the four schools on the effect of intention, the oath by divorce (hilf bi-l-talaq) as set out at length by Ibn Taymiyya and Ibn al-Qayyim, and finally divorce suspended upon a future event. The positions are reported faithfully, with the classical references cited by the sheets.
It has already been established by Ibn Taymiyya and Ibn al-Qayyim that only one divorce takes place as long as the husband remains within a single sitting. The second scenario is that of a husband who says to his wife: "you are divorced, you are divorced, you are divorced", intending only one divorce, the second and the third serving as emphasis.
If he says this to his wife with whom the marriage has been consummated, intending thereby to inform her that the first has already fallen, or emphasizing it, only one divorce is counted, both in court and in religious conscience. This is what the majority of jurists held, namely the Malikis, the Shafi'is and the Hanbalis. Among the Malikis, however, the husband is believed upon an oath before the judge, whereas in a fatwa no oath is required.
They argue that, if he intended emphasis and not renewal, only one divorce falls, based on the saying of the Prophet (peace and blessings of Allah be upon him):
Any woman who marries without the permission of her guardian, her marriage is void, her marriage is void, her marriage is void.Saying of the Prophet (peace be upon him)
He repeated the formula three times, and this is understood from him as emphasis, not renewal. He also said: "By Allah, I will certainly fight Quraysh, by Allah, I will certainly fight Quraysh, by Allah, I will certainly fight Quraysh", and his repetition is understood as emphasis, not renewal, since he fought them only once after that oath.
Such is the usage of the Arabic language and the custom of the Arabs. It follows that the repetition of the word of divorce must be understood in the same way. Moreover, if the husband repeated an admission, the right would not multiply: were he to say "he has a dirham against me, he has a dirham against me, he has a dirham against me", only one dirham would be due from him, the repetition serving as emphasis; the same applies to divorce.
The majority, however, require the repetition to be continuous. If he says "you are divorced", then some time passes, then he repeats, she is divorced a second time: the claim of emphasis is not accepted from him, because emphasis is a supplement to the speech, and the supplement is only accepted when continuous, like the other supplements of coordination, attribution and substitution. Likewise, if he says: "you are repudiated, you are set free, you are separated", this, according to the soundest view among the Shafi'is, is like "you are divorced, you are divorced, you are divorced".
Another opinion holds instead that the three divorces fall definitively (al-Qawanin al-fiqhiyya, p. 152 ; al-Taj wa-l-Iklil, vol. 3, p. 71-72 ; Mawahib al-Jalil, vol. 5, p. 278-279 ; Sharh Mukhtasar Khalil, vol. 4, p. 50 ; Tahrir al-Mukhtasar, vol. 3, p. 168-169 ; al-Sharh al-Kabir with Hashiyat al-Dasuqi, vol. 3, p. 278 ; al-Hawi al-Kabir, vol. 10, p. 219 ; al-Muhadhdhab, vol. 2, p. 85 ; al-Bayan, vol. 10, p. 116 ; Rawdat al-Talibin, vol. 5, p. 378 ; Asna al-Matalib, vol. 3, p. 288 ; al-Najm al-Wahhaj, vol. 7, p. 520 ; Mughni al-Muhtaj, vol. 4, p. 480 ; al-Ifsah, vol. 2, p. 177-178 ; al-Mughni, vol. 7, p. 367 ; al-Mubdi', vol. 7, p. 301 ; al-Insaf, vol. 9, p. 22 ; Kashshaf al-Qina', vol. 5, p. 305 ; Matalib Uli al-Nuha, vol. 5, p. 370).
The Hanafis say: if he says to his consummated wife "you are divorced, you are divorced", then declares "I meant the first one", he is believed between himself and Allah the Most High; but in court these are two divorces, because each of the two statements is, on its face, a divorce in its own right, the second formula having the same force as the first, and the judge being required to follow the apparent. His claim that he was merely repeating the first statement remains possible, since the same statement can be repeated for emphasis; Allah the Most High knows the secrets of hearts. The same applies to "I have divorced you, I have divorced you", to "you are divorced, I have divorced you", or to "divorced and you are divorced" (al-Mabsut, vol. 6, p. 99 ; Bada'i' al-Sana'i', vol. 3, p. 102 ; al-Muhit al-Burhani, vol. 3, p. 444 ; al-Jawhara al-Nayyira, vol. 4, p. 403 ; Hashiyat Ibn Abidin, vol. 3, p. 293 ; Tanqih al-Fatawa al-Hamidiyya, vol. 1, p. 264).
Hanafi and Maliki jurists have also stated that if a man says to his wife "you are divorced", and a man asks him "what did you say?", and he answers "I have divorced her" or "I said: she is divorced", then she is divorced only once. His second statement answers the questioner, who asks only about the first statement and not about a new divorce; his answer is therefore an explanation of the first (al-Mabsut, vol. 6, p. 99 ; Tuhfat al-Fuqaha, vol. 2, p. 177 ; Bada'i' al-Sana'i', vol. 3, p. 102 ; al-Bahr al-Ra'iq, vol. 3, p. 315 ; al-Jawhara al-Nayyira, vol. 4, p. 403 ; Hashiyat Ibn Abidin, vol. 3, p. 293 ; al-Fatawa al-Hindiyya al-Hamidiyya, vol. 1, p. 355).
The Malikis say: if a man has pronounced upon his consummated wife a revocable divorce whose waiting period has not yet ended, then someone asks him "what have you done?" and he answers "she is divorced": if he intended to inform him of what he had done, only one divorce is due from him, the first; if he intended to pronounce a new divorce, a second is added to the first. If he intended neither information nor pronouncement, the view of al-Lakhmi holds the first only, reading it as information, while others hold two divorces, reading it as pronouncement: two views among the later scholars.
But if the wife had not been consummated, or the divorce was irrevocable through a khul', or it was a revocable divorce whose waiting period had ended, and he says "she is repudiated" or "I have divorced her", only the first counts, by consensus. The debate is therefore bounded by conditions: that the wife be consummated, that the divorce be revocable and its waiting period not ended, that the formula used lend itself both to information and to pronouncement, and that the matter be before a judge; the husband is then sworn to the formula that entails only one divorce, provided he still has one divorce left and wishes to take her back by raj' (return). If no divorce preceded it, no oath is due from him, for he holds the right of return in both cases (al-Taj wa-l-Iklil, vol. 3, p. 72 ; Sharh Mukhtasar Khalil, vol. 4, p. 50 ; Tahrir al-Mukhtasar, vol. 3, p. 169 ; al-Sharh al-Kabir with Hashiyat al-Dasuqi, vol. 3, p. 278).
Third scenario: he repeats "you are divorced, you are divorced, you are divorced" and pronounces the divorce intending nothing. The majority of jurists, namely the Hanafis, the Malikis and the Shafi'is according to the more apparent view, as well as the Hanbalis, hold that if he says to his consummated wife "you are divorced, you are divorced" or "you are divorced, you are divorced, you are divorced", pronouncing the divorce without intention, without intending emphasis or renewal, what he said falls, according to the apparent wording.
Against this more apparent view, the Shafi'is of the other view hold that only one divorce falls: emphasis and renewal are both possible, and certainty is retained (Hashiyat Ibn Abidin, vol. 3, p. 293 ; al-Mudawwana al-Kubra, vol. 5, p. 397 ; al-Furuq of al-Qarafi, vol. 4, p. 243 ; al-Muhadhdhab, vol. 2, p. 85 ; al-Bayan, vol. 10, p. 116 ; Rawdat al-Talibin, vol. 5, p. 378 ; Asna al-Matalib, vol. 3, p. 288 ; al-Najm al-Wahhaj, vol. 7, p. 521 ; Mughni al-Muhtaj, vol. 4, p. 481 ; al-Mughni, vol. 7, p. 367 ; al-Mubdi', vol. 7, p. 302 ; Kashshaf al-Qina', vol. 5, p. 305 ; Matalib Uli al-Nuha, vol. 5, p. 370 ; al-Qawa'id of Ibn Rajab, no. 398).
The single divorce involves only two situations. The first: saying "you are divorced once"; if he pronounces the divorce unconditionally, one divorce falls beyond dispute, and no disagreement exists among the jurists on this.
The disagreement concerns the case where he says "you are divorced once" while intending a number, two or three: does one fall, or three? The Hanafis, the Shafi'is in one view and the Hanbalis in the madhhab hold that one falls: the spoken word contradicts the intended one, and the spoken word is stronger, so applying it takes priority, since his words cannot bear more than one divorce. By intending three, he intended what his words cannot bear; if more fell, it would fall by mere intention, and mere intention does not bring about divorce.
The Malikis, the Shafi'is according to the preponderant view, and the Hanbalis in another view hold that the intended falls, not the spoken, by applying the intention, for "deeds are only by intentions" (Fatawa al-Sughdi, no. 1327 ; al-Tajrid of al-Quduri, vol. 10, p. 4856 ; al-Ghurrat al-Munifa, p. 151 ; Jami' al-Ummahat, p. 279 ; Rawdat al-Talibin, vol. 5, p. 376 ; al-Najm al-Wahhaj, vol. 7, p. 518 ; Mughni al-Muhtaj, vol. 4, p. 479 ; Tuhfat al-Muhtaj, vol. 9, p. 410 ; al-Mughni, vol. 7, p. 371-372 ; Sharh al-Zarkashi, vol. 2, p. 480 ; al-Mubdi', vol. 7, p. 293-294 ; al-Insaf, vol. 9, p. 8-9 ; Kashshaf al-Qina', vol. 5, p. 300).
Second case: saying "you are divorced" while intending three. The jurists disagree about the man who divorces his wife with a single divorce while intending three by the words "you are divorced": do three fall, or one? The Hanafis and the Hanbalis in one view hold that one falls: this formula contains neither a number nor separation, so three do not fall by it; "you are divorced" is a report about a state already hers and contains no number, like "menstruating" and "pure".
"Divorce is twice. Then either keep them in an acceptable manner or release them in an acceptable manner."
Surah Al-Baqarah, 2, 229
Allah the Most High thus spoke of divorce without detailing whether three divorces are intended or not.
Imam al-Tahawi (may Allah have mercy on him) reported: our companions said that if he says "you are divorced", it is only one divorce, even if he intended three; this is the view of al-Thawri and al-Awza'i. Malik, al-Layth and al-Shafi'i said: if he intended three, they are three. Abu Ja'far said: if he says "you are divorced three times", the triple falls, divorce being an attribute (sifa) of the wife; if he says "you are divorced" and falls silent, it is his word "divorced" that takes effect. If the triple fell by his mere intention, the efficient cause would be what he did not utter; divorce cannot be pronounced by mere intention, and divorce may not fall by an intention devoid of words, for Allah has overlooked what this community whispers in their souls as long as they do not utter it by tongue or do it (Mukhtasar Ikhtilaf al-'Ulama, vol. 2, p. 411).
The Malikis, the Shafi'is and the Hanbalis in the madhhab hold that three fall, because the formula bears the number and accepts it. When a word bears something and he intends it, it is accepted from the one intending it, as with "the divorce is yours". "You are divorced" is the epithet of the active participle derived from "she has been divorced, she is divorced": just as one says "Zayd strikes and kills" for one, two and three, "divorced" applies to one, two and three. The woman divorced three times shares with the woman divorced once the same attribute of being divorced; when the name is used for the one, it indicates acceptance of its number of divorces.
"You are divorced" is also the epithet of an understood verbal noun (masdar), which would be "you are divorced by one divorce"; this verbal noun accepts the number by consensus, and spelling it out is equivalent to omitting it since it is known from the words. If the verbal noun accepts the number, the epithet may bear what the verbal noun would bear if spelled out. Consensus has further been reached that "you are divorced three times" produces three divorces; now the word "three times" is either the explanation of the unclear number in "you are divorced", or an independent sentence, or, with the whole, a formula for triple divorce. If it is an explanation, that is our view, for words that cannot bear the number cannot explain it. If it is an independent sentence, that is invalid, for it would also apply to the unconsummated wife, though the word reverts to him after separation; and the word stands as an accusative of specification, like "twenty dirhams", not being autonomous in itself. If the whole forms a formula for triple divorce, that is our argument: just as the name of the formula "you are irrevocably repudiated" accepts specification of the number, it accepts it in "you are irrevocably repudiated, the divorce is yours". Every word granting the husband the power of three explicit divorces grants it by intention, as with "the divorce is yours"; likewise, every word by which the wife can pronounce three divorces if the husband delegated it to her (al-Ishraf 'ala Nakt Masa'il al-Khilaf, vol. 3, p. 416-418, no. 1237 ; al-Hawi al-Kabir, vol. 10, p. 162-163 ; Rawdat al-Talibin, vol. 5, p. 375-376 ; al-Najm al-Wahhaj, vol. 7, p. 517-518 ; Mughni al-Muhtaj, vol. 4, p. 478-479 ; Tuhfat al-Muhtaj, vol. 9, p. 409-410 ; al-Ifsah, vol. 2, p. 173 ; al-Mughni, vol. 7, p. 371-372 ; Sharh al-Zarkashi, vol. 2, p. 480 ; al-Mubdi', vol. 7, p. 393 ; al-Insaf, vol. 9, p. 8-9 ; Kashshaf al-Qina', vol. 5, p. 300).
Imam al-Mawardi (may Allah have mercy on him) said: if he intends three by the explicit of divorce, then says "you are divorced" intending the triple, they are three; if he intended two, they are two: the explicit of divorce is carried to the number intended. Our proof: "you are divorced" is, among the people of Arabic, an active participle; they say "she has been divorced, she is divorced", as they say "she has menstruated, she is menstruating" and "she struck, she is striking"; the active participle bears the numbers of verbal nouns: one says "you are divorced by two divorces, by three divorces, by a hundred divorces", and "striking a hundred blows". It would not be proper to say "you are striking one divorce": this proves the word contains the number. Second proof: if one says to an unconsummated wife "you are divorced three times", the three fall; yet the three can only fall by the first word, since the unconsummated wife cannot be divorced by word upon word: were he to say "you are divorced and divorced", the first falls and not the second. If the number can be implicit in it, it can equally be intended by it. Third proof: if he says "you are divorced" while holding up three fingers, the three fall; the intention of the triple is stronger than the gesture of the triple, for the allusive formula receives intention but not gesture (al-Hawi al-Kabir, vol. 10, p. 162-163).
Imam Ibn Rushd (may Allah have mercy on him) said: they disagree about the one who says to his wife "you are divorced" claiming to intend more than one, two or three. Malik said: what he intended falls, and it is binding upon him. Al-Shafi'i followed him, except if he qualifies by saying "one divorce only"; this is the view chosen by his companions. Abu Hanifa said: three do not fall by the word of divorce, for the word of singularity does not contain the number, neither allusively nor explicitly.
The cause of their disagreement: does divorce fall by mere intention without the words, or by intention with an ambiguous word? Whoever accepts mere intention brings about the triple; likewise whoever accepts intention with a word bearing the number and holds that the word of divorce bears the number. Whoever holds that the word does not bear the number, and that divorce requires the words together with the intention, holds that the number does not fall even if intended. This issue belongs to the conditions of the formulas of divorce, that is, to the requirement of intention with the words, or of either one alone. It is famous from Malik that divorce does not fall except by words and intention; Abu Hanifa followed him, though it is also reported from him that it falls by the words without intention; according to al-Shafi'i, the explicit formula of divorce needs no intention. Whoever relies on intention cites the saying of the Prophet (peace be upon him):
Deeds are only by intentions, and every person will have only what he intended.Reported by al-Bukhari and Muslim
If an interruption separates the words from the intention, it is not accepted from him in judgment among the Shafi'is, and he is believed between himself and Allah the Most High. The Malikis said: if an interval separates the two divorces and the first is revocable, the second is binding upon him.
The Hanafis say: if he says "you are divorced, divorced, divorced" then claims "I only meant emphasis", he is believed in religious conscience but not in court, for the judge must follow the apparent and Allah oversees the secrets. The wife, like the judge, cannot rule in his favor when she has heard his statement or come to know of it, for she has access only to the apparent; and the husband's statement about his inner self is accepted only with an oath, for he is trustworthy in reporting his inner state, and his word is retained only with his oath (Tabyin al-Haqa'iq, vol. 2, p. 218 ; al-Bahr al-Ra'iq, vol. 3, p. 315 ; al-Ashbah wa-l-Naza'ir, vol. 1, p. 149 ; Durrar al-Hukkam, vol. 1, p. 53).
Third case: the one who intends nothing. He says "you are divorced, divorced" or "you are divorced, divorced, divorced" pronouncing the divorce intending nothing: all agree that one alone is due from him, and they disagree as to whether three fall or one only. The Hanbalis and the Shafi'is in one view said: one falls, for no conjunction intervened between the words requiring differentiation, so the three words are not differentiated (al-Mughni, vol. 7, p. 369 ; al-Mubdi', vol. 7, p. 302 ; al-Insaf, vol. 9, p. 22-23 ; al-Najm al-Wahhaj, vol. 7, p. 520-521 ; Mughni al-Muhtaj, vol. 4, p. 480-481).
The Shafi'is in the more apparent view, which is also the view of the Hanafis and the Malikis reported above for "you are divorced, you are divorced, you are divorced", hold that if he repeats without intention, without seeking emphasis or renewal, what he said falls, two or three divorces, according to the apparent wording: carrying the repetition to a new benefit is more apt than carrying it to emphasis (Rawdat al-Talibin, vol. 5, p. 378 ; Asna al-Matalib, vol. 3, p. 288 ; al-Najm al-Wahhaj, vol. 7, p. 520-521 ; Mughni al-Muhtaj, vol. 4, p. 480-481).
The jurists disagreed about the case where the husband repeats the divorce by means of a conjunction of coordination, with a waw, a fa or a thumma, saying "you are divorced and divorced and divorced", "you are divorced, so divorced, so divorced", or "you are divorced then divorced then divorced": are three divorces counted, does one return to his intention, or something else?
The Hanafis said: if he says "you are divorced and divorced and divorced" or "you are divorced then divorced then divorced", the three fall; if he meant by the last two the mere repetition of the first, one falls (Fatawa al-Sughdi, p. 340).
The Malikis said: if he repeats the divorce by coordination, with the waw, the fa or the thumma, saying "you are divorced and divorced and divorced", "you are divorced, so divorced, so divorced" or "you are divorced then divorced then divorced", as many as he repeated are due from him: two or three, whether he ran the words together or separated them by a silence or other words, so long as it is not a khul', for the revocable wife remains subject to divorce as long as her waiting period lasts (al-Taj wa-l-Iklil, vol. 3, p. 70 ; Mawahib al-Jalil, vol. 5, p. 278 ; Sharh Mukhtasar Khalil, vol. 4, p. 49 ; al-Sharh al-Kabir with Hashiyat al-Dasuqi, vol. 3, p. 277-278 ; Tahrir al-Mukhtasar, vol. 3, p. 167-168 ; Hashiyat al-Sawi, vol. 5, p. 351).
The Shafi'is and the Hanbalis hold that if the husband repeats the report by coordination saying "you are divorced and divorced and divorced", then says "I intended to emphasize the first by the second", this is not accepted from him: the second word being linked by a conjunction whose effect is differentiation, he has distinguished the second from the first by a conjunction requiring coordination and difference, which precludes emphasis.
The Shafi'is specify: this is on the surface; as for what lies between him and Allah the Most High, it is accepted from him: two divorces are due from him outwardly, one inwardly. If he says "I intended to emphasize the second by the third", his statement is sound and accepted, the two formulas being equivalent: the third is like the second in its wording. If he simply says "I intended emphasis", he is believed and it is accepted from him in judgment among the Shafi'is and the Hanbalis in one narration, for he repeated the word of divorce identically to the first, and his explanation by emphasis is accepted as in "you are divorced, you are divorced". The second Hanbali narration rejects this explanation, the conjunction implying differentiation.
If he pronounces the divorce without any purpose or intention, two views exist among the Shafi'is: the more apparent holds three divorces, according to the apparent wording; the second holds that one falls, emphasis remaining possible, and certainty is retained.
If he mixes the conjunctions saying "you are divorced and divorced then divorced", "you are divorced then divorced and divorced" or "you are divorced and divorced, so divorced", the wish for emphasis is accepted in none of these cases, neither for the first nor for the second, on the surface of the ruling, among the Shafi'is and the Hanbalis: each word differing from the preceding one in its wording, emphasis holds only by repeating the first identically. The Shafi'is specify further: this is on the surface, but between him and Allah the wish for emphasis is accepted from him (al-Hawi al-Kabir, vol. 10, p. 220-221 ; al-Muhadhdhab, vol. 2, p. 85 ; Rawdat al-Talibin, vol. 5, p. 378 ; al-Najm al-Wahhaj, vol. 7, p. 522 ; Mughni al-Muhtaj, vol. 4, p. 481-482 ; al-Mughni, vol. 7, p. 369 ; al-Kafi, vol. 6, p. 186-187 ; al-Insaf, vol. 9, p. 23 ; Kashshaf al-Qina', vol. 5, p. 306-307 ; Manar al-Sabil, vol. 3, p. 106-107).
According to the Hanafis, the suspension (ta'liq) is an oath in language and a reality (haqiqa) in technical usage: the oath occurs both by swearing by Allah the Most High and by suspension. When the divorce is suspended not upon anyone's act, as in "you are divorced if the sun rises", this is a suspension and not an oath, the meaning of the oath being absent from it, though it resembles the oath in its ruling; some jurists also call it an oath (Durrar al-Hukkam, vol. 4, p. 278 and vol. 5, p. 163 ; al-Bahr al-Ra'iq, vol. 4, p. 2 ; Hashiyat Ibn Abidin on al-Durr al-Mukhtar, vol. 3, p. 341).
The suspended divorce is therefore an oath among the majority, and it is by it that one swears by divorce; the reality of swearing by divorce is the suspension of the divorce. Swearing by a thing, in the proper sense, is the oath (qasam) by it, with one of the particles of the oath added, as in "by Allah" and "by the Most Merciful"; the name of oath may also be applied to suspension by a thing, as jurists do when they say "if he swears by divorce upon such and such", meaning the suspension of divorce by it: this is a metaphorical usage, whose cause resembles the oath in that it requires urging or forbidding (Ihkam al-Ahkam, vol. 4, p. 149 ; Fath al-Bari, vol. 11, p. 538).
What the jurists mean by swearing by divorce is the suspension of divorce upon what forbids an act, urges it, or calls for belief. If the suspension achieves nothing of this, as when it rests upon a matter not subject to choice, such as "you are divorced if the sun rises", it is not an oath by divorce: it is then called divorce by attribute (talaq bi-sifa), that is, suspending the divorce upon a condition the wife cannot avert: "you are divorced if the sun rises, if the first of the month enters, if rain falls, if the pilgrim arrives, if you menstruate, if you give birth, or if you wish".
The oath by divorce, in turn, aims at forbidding an act, urging an act, or confirming a fact:
All of this is an oath by divorce (al-Hawi al-Kabir, vol. 10, p. 217-218).
Ibn Qudama (may Allah have mercy on him) said: our companions disagreed about the oath by divorce. Al-Qadi, in al-Jami', and Abu al-Khattab said: it is the suspension of divorce upon any condition whatsoever, except "you are divorced if you wish", which is a grant of choice (tamlik), "you are divorced if you menstruate", which is the divorce of innovation, and "you are divorced when you are pure", which is the divorce of the sunna: this is Abu Hanifa's view, for it is called a customary oath ('urf) and the ruling attaches to it, as in "if you enter the house, you are divorced"; the condition indeed contains the meaning of the oath as an autonomous sentence without an answer, like "by Allah", "wa-billah" and "tallah". Al-Qadi, in al-Mujarrad, said: it is the suspension upon a condition aiming at urging the act or forbidding it, as in "if you enter the house, you are divorced, and if you do not enter, you are divorced", or confirming his report, as in "you are divorced upon the arrival of Zayd, or upon his failure to come"; any other suspension, as in "you are divorced if the sun rises, if the pilgrim arrives, or if the ruler does not come", is a pure condition, not an oath, for the reality of the oath is the qasam, and the suspension of divorce upon a condition was called an oath only permissively, sharing with it its best-known meaning: urging, forbidding, or confirming a report, as in "I will certainly do it", "I will not do it" or "I have already done it"; whatever lacks this meaning cannot be called an oath: this is the madhhab of al-Shafi'i (al-Mughni, vol. 7, p. 332-333).
The oath by divorce is therefore not an oath in the proper sense among the people of knowledge, but a metaphorical usage as seen above; it is in reality a divorce by attribute: as soon as he pronounces it, the divorce falls, according to what is established among the jurists of the four madhhabs as the sound position within each school. Ibn Abd al-Barr (may Allah have mercy on him) said: swearing by divorce or by manumission is not an oath among the people of methodical inquiry; it is a divorce or a manumission by attribute as soon as he pronounces it upon the object sworn by, since the customary usage intends thereby the suspension. His saying "the divorce is upon me, I will not do this" is equivalent to "if you do this, you are divorced"; if he does not mention "I will not do this", his saying "the divorce is upon me" remains without suspension, the customary usage being for suspension rather than pronouncement; lacking a pronouncement usage that brings the divorce about, it is not explicit, which leaves room for the disagreement set out below concerning the one who says "your divorce is upon me" (Hashiyat Ibn Abidin, vol. 3, p. 253).
The Muslim jurists agree that when the husband suspends the divorce of his wife, saying "the divorce is upon me if I do this", "if you do this you are divorced", "if you speak to Zayd, to your brother or to anyone else", or "the divorce is binding upon me", the divorce does not take place as long as what it was suspended upon does not occur. Imam al-Mawardi (may Allah have mercy on him) said: divorce occurs immediately, by attribute, or unto a term. Immediately: "you are divorced", and it falls by the words alone. By attribute: "if you enter the house you are divorced" or "if Zayd arrives you are divorced": the divorce does not fall before the existence of the attribute, whether entering the house or the arrival of Zayd; this is agreed upon (al-Hawi al-Kabir, vol. 10, p. 192).
They disagreed, once the condition occurs, about whether the divorce takes effect, in three views. The first is the view of the majority of the people of knowledge, for which consensus has been reported: the divorce takes effect when what it was suspended upon occurs; it is the sound position within the four madhhabs (Bidayat al-Mujtahid, vol. 2, p. 59). Ibn al-Mundhir (may Allah have mercy on him) reported consensus on it regarding the oath by divorce: "All those whose words we preserve among the scholars of the regions agree that whoever swears by divorce upon his wife not to do something, then does it, the divorce falls upon her. This is the view of Malik, al-Shafi'i, Ahmad, Ishaq, Abu Thawr and the people of opinion. Abu Ubayd mentioned that this is the view of the people of the Hijaz, Iraq, Syria and Egypt, among them Malik and al-Layth ibn Sa'd." Abu Bakr said: "and so we say" (al-Awsat, vol. 12, p. 134).
Abu Umar Ibn Abd al-Barr (may Allah have mercy on him) said: no disagreement exists among the scholars of the community, early and late, that divorce contains no expiation, that the oath by divorce is like divorce by attribute, and that it becomes binding once the attribute exists (al-Tamhid, vol. 20, p. 90). They cite reports from the Companions, none of which reaches the Prophet (peace be upon him) connected. Al-Bukhari reports in suspended form, from Nafi': "A man irrevocably divorced his wife if she went out. Ibn Umar said: if she goes out, it is final from him; if she does not go out, there is nothing" (al-Bukhari, suspended form, vol. 5, no. 2019 ; see Sharh al-Sunna of al-Baghawi, vol. 9, p. 215 ; Umdat al-Qari, vol. 20, p. 253). And from Ibrahim, from Ibn Mas'ud (may Allah be pleased with him), about a man who said to his wife: "if she does this and that, she is divorced", and she did it: "it is one, and he has more right to her" (reported by al-Bayhaqi in al-Sunan al-Kubra, no. 14867 ; an interrupted chain, as Ibn al-Qayyim noted in I'lam al-Muwaqqi'in, vol. 3, p. 54).
The second view: the divorce does not take effect at all, and there is no expiation of the oath; this is the view of a group of the people of knowledge, such as Ibn Hazm and others, reported by Ibn Taymiyya from them. The third view: it is a contracted oath bearing the expiation of the oath; this is the choice of a group of Malikis and Shafi'is, and the choice of the shaykh of Islam Ibn Taymiyya, of Ibn al-Qayyim and others, who defended this position forcefully.
Ibn Taymiyya was asked about one who swears by divorce upon some matter and then breaks his oath: does the divorce thereby fall? He answered that the question divides the early and the later generations into three views. The first: the divorce falls when he breaks his oath. This is the most famous position among most of the later jurists, to the point that some believed it to be a consensus, without any proof being reported against them; their proof is very weak: he committed himself to something upon a condition, so what he committed himself to is binding; this argument is refutable in many ways, some agreed upon, such as the vow of divorce, of a sinful act or of a permissible act, or binding disbelief upon an oath, whereas it has no precedent to draw analogy from and the two cases differ by a decisive factor in the shari'a; no general text nor consensus establishes it. At first sight this view resembles a binding contract, like what prevailed at the beginning of Islam before Allah revealed the expiation of the oath as obligatory and prohibiting; the shari'a of Muhammad abrogated it and prescribed for the Muslims the means of dissolving their oaths through the expiation He prescribed. If, however, he does not break his oath, the divorce does not fall at all, except for a weak report attributed to Shurayh and a narration from Ahmad where the divorce was pronounced first. And if he pronounces the divorce: if he intended by the oath that the second divorce emphasize the first, without a new pronouncement, only one falls; if he pronounces three, three fall; others say only one falls.
The second view: neither divorce nor expiation is due; this is the madhhab of Dawud and his companions and of fractions of the Shi'a; its proofs are reported from a group of the early generations, indeed explicitly from Abu Ja'far al-Baqir, transmitted by Ja'far ibn Muhammad. Their principle: swearing by divorce, manumission, zihar, the forbidden or a vow is idle speech, like swearing by creatures. Some companions of Abu Hanifa and al-Shafi'i, such as al-Qaffal and the author of al-Tatimma, answer with the expiation of the oath, and it is reported explicitly from Abu Hanifa, because "the divorce is binding upon me" or "it is due from me" is a formula of vow, not a formula of pronouncement, like "I have an obligation before Allah to divorce". Whoever vows to divorce owes no divorce, without dispute; but his obligation of expiation involves two views.
The third view, the soundest of the three, supported by the Book, the sunna and careful examination: it is an oath among the oaths of the Muslims, upon which applies what applies to the oaths of the Muslims, namely the expiation upon breaking, unless the swearer chooses to pronounce the divorce: he may then pronounce it without expiation. This is the view of a group of the early and the later generations, such as Tawus and others, the import of the reports of the Companions of the Messenger of Allah (peace be upon him) in this chapter, and the answer of many Malikis, to the point that it is said that in the Maghreb many Maliki imams answer so; it is also the import of the texts of Ahmad ibn Hanbal and the principles of his school elsewhere. According to this view, if the expiating oath is repeated two or three times for a single act: is one expiation sufficient or several? Two views among the scholars, two narrations from Ahmad, the more famous from him being that one expiation suffices.
These three views are reported by Ibn Hazm and others for the oath by divorce as for the oath by manumission and the vow: "if I do this, my slaves are free" involves the three views. But here no companion of Abu Hanifa or al-Shafi'i has said that manumission does not bind him, contrary to what they said of divorce, and his vow remains valid. The transmission of the Companions establishes that one expiation suffices, established from Ibn Umar, Hafsa and Zaynab, and reported also from Aisha, Umm Salama, Ibn Abbas and Abu Hurayra; it is the view of the leading successors such as Tawus and Ata', and nothing contrary is established from any Companion, neither for the oath by divorce nor for that by manumission. Indeed, when the Companions say that the one swearing by manumission is not bound to free, the one swearing by divorce is even less so in their eyes. It is like the oath by vow: "if I do this, hajj is upon me, or the fast of a year, or a third of my wealth in charity": it is an oath in which the expiation suffices according to the Companions such as Umar, Ibn Abbas, Aisha and Ibn Umar, according to most of the successors such as Tawus, Ata', Abu al-Sha'tha' and Ikrima, according to the explicit madhhab of al-Shafi'i, according to the madhhab of Ahmad without dispute, according to one of the two narrations from Abu Hanifa chosen by Muhammad ibn al-Hasan, and according to the view of a group of Malik's companions such as Ibn Wahb and Ibn Abi al-Ghamr; Ibn al-Qasim gave this answer to his son. It is well known among the majority of the early generations, the Companions, the successors and those after them, that there is no difference between swearing by divorce, manumission or a vow: either the expiation suffices for every oath, or nothing is due from him, or he is bound to what he swore. Even one who says "if I do this, freeing a slave is upon me" intending the oath is not bound to free, but the expiation suffices; if he says it in the form of a vow, it binds him by consensus (Majmu' al-Fatawa, vol. 33, p. 215-220).
Ibn Taymiyya says further: if a man swears by divorce saying "the divorce is binding upon me to do this or not to do it", "the divorce is due from me if I do it", or "if I do not do it, the divorce is binding upon me or due from me", and then breaks his oath, does the divorce fall? Two views exist among the scholars of the Muslims in the four madhhabs and beyond. One: the divorce does not fall; this is reported explicitly from Abu Hanifa himself; it is the view of a group of al-Shafi'i's companions such as al-Qaffal and Abu Sa'id al-Mutawalli, the author of al-Tatimma; it is given as fatwa and ruling by a group of the companions of Abu Hanifa and al-Shafi'i and others of the people of the sunna and the Shi'a, in recent times, in the lands of the East, the Jazira, Iraq, Khurasan, the Hijaz, Yemen and elsewhere; it is the view of Dawud and his companions such as Ibn Hazm, who gave fatwas and ruled thus in Persia, Iraq, Syria, Egypt and the Maghreb to this day, forming a great group with many judges and muftis; it is the view of a group of the early generations such as Tawus and others besides Tawus; many scholars of the Maghreb, Malikis and others, have answered so in recent times; some shaykhs of Egypt answered so; and the explicit texts of Ahmad ibn Hanbal and the principles of his school establish it elsewhere.
If he swears by the triple, saying "the divorce is binding upon me three times to do this", and then does not do it: a group of the early and the later generations among the companions of Malik, of Ahmad ibn Hanbal and of Dawud answer that the triple does not fall, though some of them pronounce one divorce; this is reported from a group of Companions and successors for immediate pronouncement, all the more for suspended pronouncement and the oath; and those who followed them among the companions of Malik, Ahmad and Dawud held it for immediate pronouncement, suspended pronouncement and the oath. Among the early generations, eminent figures distinguished between the consummated wife and the one not consummated. Those who pronounce no divorce by "the divorce is binding upon me" divide: some order neither divorce nor expiation, others order the expiation; each of the two views has been held by many scholars. Ibn Taymiyya notes that he has expounded elsewhere the scholars' views on these issues, their formulas, their transmitters, the books containing them and the proofs: the whole fills several volumes.
This differs from what he said of the madhhab of Abu Hanifa and al-Shafi'i in the case of the oath by the formula of obligation, such as "the divorce is binding upon me": the dispute exists within both schools, whether the pronouncement be immediate, suspended upon a condition or sworn; is it explicit, allusive, or neither, so that no divorce falls even if intended? Three views; and in the madhhab of Ahmad, two: explicit or allusive. As for the oath by divorce, or the suspension meant as an oath, the dispute of others over it is different. Whoever claims that every mufti answering that the divorce does not fall in these forms contradicts the consensus and every view in the four madhhabs has erred and followed what he has no knowledge of; Allah the Most High has said:
"And do not pursue that of which you have no knowledge."
Surah Al-Isra, 17, 36
The four imams, their followers and the other imams like them agree that whoever rules that the divorce does not fall in such forms, his ruling cannot be overturned; and whoever answers so among the people of fatwa, it is permissible for him. He may not be condemned, by agreement of the four imams and the other imams of the Muslims, nor the one who follows him, even if he rules or answers by a permissible view departing from the views of the four imams in matters of oaths and divorce, so long as it contradicts neither a book, nor the sunna, nor their meaning; the judge and the mufti then rely upon the legal proofs just as one relies upon the Book and the sunna. It is therefore permissible for him to rule and answer so, and it is not permissible, by agreement of the four imams, to overturn his ruling, nor to prevent him from ruling or answering, nor to prevent anyone from following him.
Whoever says that one may prevent this has contradicted the consensus of the four imams, indeed the consensus of the Muslims, while contradicting Allah and His Messenger. Allah the Most High says in His Book:
"O you who believe, obey Allah and obey the Messenger and those in authority among you. If you dispute over anything, refer it to Allah and the Messenger, if you believe in Allah and the Last Day. That is better and more beautiful in outcome."
Surah An-Nisa, 4, 59
Allah commands the believers to refer their disputes to Allah and the Messenger, that is, to the Book and the sunna. Whoever says that no one may refer the dispute to the Book and the sunna, and that the Muslims must follow the word of his school without establishing a legal proof by the Book and the sunna, contradicts the Book, the sunna and the consensus of the Muslims; such a man must be called to repent and be punished like his likes. If the question is one where the scholars dispute, one side holding one of the two views without legal proof from the Book or the sunna, and the holder of the other view likewise lacking a valid legal proof, then the one without proof cannot prevent the one relying upon the legal proofs, by consensus of the Muslims. Otherwise he would sanction preventing the Muslims from the word conforming to the Book and the sunna, and obliging the people to follow the word contradicting it, with no legal proof imposing that word or forbidding the other: such a man has departed from the religion; he must be called to repent and punished like his likes. If he is ignorant, he is excused first by ignorance, until the views of the people of knowledge and the proofs of the Book and the sunna become clear to him. If he then persists in opposing the Messenger after the guidance has become clear to him and follows a path other than that of the believers, he is called to repent; if he repents, well and good, otherwise he is put to death.
Every oath among the oaths of the Muslims other than the oath by Allah, such as the oath by divorce, manumission, zihar, the forbidden, or the oath by hajj, walking, charity and fasting, is subject to a well-known dispute among the scholars, whether he swore by the formula of the qasam saying "the forbidden is binding upon me" or "manumission is binding upon me to do this", or by the formula of manumission saying "if I do this, the forbidden is upon me, my wives are repudiated, my slaves are free, my wealth is charity, and walking to the house of Allah is upon me". The four imams and all the imams of the Muslims agree that it is permissible for the judge to rule, in all these questions, that if he breaks his oath, what he swore is not binding upon him: either nothing is due from him, or the expiation suffices. It is likewise permissible for the mufti to rule so, and there have always been among the Muslims, since these oaths appeared until today, those who answer with the expiation, those who answer without expiation nor compulsion of the sworn matter, and those who answer with the compulsion of the sworn matter; these three views exist in the community for the oath by divorce, manumission, the forbidden and the vow. As for swearing by creatures, such as the Ka'ba and the angels, no expiation exists for it, by consensus of the Muslims.
Oaths are therefore of three categories. Either the oath by Allah: the expiation applies to it by consensus. Or the oath by creatures: no expiation, by consensus, except the oath by the Prophet (peace be upon him), upon which the madhhab of Ahmad contains two views, the majority holding that there is no expiation; some companions of that view extended it to all the prophets, while most of Ahmad's companions and other scholars contradicted them. Or the oath contracted by Allah the Most High: three views exist among the Muslims concerning it, although some have claimed consensus in some of its cases, just as he who is unaware of a dispute claims consensus in many disputed matters, saying "I know of no dispute"; but he who knows the dispute and establishes it is a knowledgeable establisher, preferable to the one who denies it out of ignorance, by agreement of the Muslims.
When the question is one disputed by the early and the later generations, and no text of the Book, the sunna nor consensus exists to bind the swearer by divorce or otherwise, the view of non-bindingness is permissible, by agreement of the four imams and the imams of the Muslims. They even agree that no one may prevent a qualified judge from ruling so, nor a qualified mufti from answering so; they even permit the fatwa and the ruling upon weak views, because of the dispute surrounding them. How then could they prevent this view supported by the Book, the sunna and the sound legal analogy, when the contrary view is established from the early and the later generations? The Companions, the best of this community, answered, regarding the oath by manumission which is dearer to Allah the Most High than divorce, that the swearer is not bound to free but the expiation of the oath suffices; how then would their view on divorce, the most hateful of lawful things to Allah, be any different? Can it be believed that the Companions, may Allah be pleased with them, would say of one who swears by what Allah loves among acts of obedience, such as prayer, fasting, charity and hajj, that he is not bound to perform them but that the expiation of the oath suffices, and say of what Allah does not love, indeed hates, that it is binding upon the swearer?
The Muslims agree that the oath by disbelief or by Islam does not bind: if he says "if I do this, I am a Jew" and then does it, he does not become a Jew, by consensus. Is the expiation of the oath due from him? Two views: it is due, this being the madhhab of Abu Hanifa and of Ahmad according to the most famous report from him; it is not due, this being the view of Malik, of al-Shafi'i and of a narration from Ahmad. Some companions of Abu Hanifa said that if he believes he becomes a disbeliever upon breaking his oath and swears by it, he becomes a disbeliever, for he has chosen disbelief; the majority said he does not become a disbeliever, for his aim is that disbelief not bind him, and he swore by it out of loathing for it. Likewise, everyone who swears by divorce intends by his oath that it not bind him, out of loathing for it. The majority thus distinguished the vow of attainment from the vow of obstinacy and anger: the first aims at the realization of the condition and the sanction, unlike the second. If he says "if Allah heals my patient, freeing a slave is upon me, or my slave is free", that binds him by consensus. But if he says "if I do this, freeing a slave is upon me, or my slave is free" intending not to do it, there lies the dispute: does manumission bind him in both cases, in neither, does the expiation suffice, or does the expiation suffice for the suspension of the obligation but not for the pronouncement? These are the three views of divorce.
The Jew who says "if I do this, I am a Muslim" and then does it does not become a Muslim, by consensus, for the swearer has sworn by what binds him upon occurrence. Likewise the Muslim who says "if I do this, my wives are repudiated, my slaves are free, and I am a Jew": he loathes divorcing his wives, freeing his slaves and leaving his religion, even though the explicit texts of the four imams establish the manumission.
It is well known that seven Companions, such as Ibn Umar, Ibn Abbas, Abu Hurayra, Aisha, Umm Salama, Hafsa and Zaynab, the daughter-in-law of the Prophet, outweigh four scholars of the Muslims. If they say, together with the imams of the successors, that the sworn manumission does not bind the swearer but that the expiation of the oath suffices, that view, together with the proofs of the Book and the sunna, is indeed the one that stands. How could it be permissible for one of the people of knowledge and faith to bind the community of Muhammad by the weakest view in the Book, the sunna and the sound analogies, whereas the Muslims find in it the good of their religion and their world: the protection of their persons, their wives, their wealth and their honor, the reform of their relations, the maintenance of kinship ties, unity in obedience to Allah and His Messenger, and independence from disobedience to Allah and His Messenger? This would suffice to prefer it even for one who does not know the proofs of the Book and the sunna; how much more for one who does?
The one who affirms the occurrence of the divorce has no proof able to withstand the one who denies it; and if the one striving to establish a sound legal proof without contradiction, for the occurrence of the divorce upon the swearer, were to try, he would fail. How could it be permissible for anyone to command what contradicts the consensus of the Muslims and leads out of the path of the believers? The view of some scholars that contradicts no text, no consensus nor anything of that meaning, and upon which a legal proof from the Book, the sunna and the sound analogy may be preferred, may not be forbidden in ruling or fatwa, even if its preponderance does not appear; all the more if it appears by the Book and the sunna, expounding the grace Allah grants therein. Allah the Most High says:
"Allah has already ordained for you the dissolution of your oaths. That is the expiation for oaths when you have sworn."
Surah Al-Ma'idah, 5, 89
It is established in the authentic collections that the Prophet (peace be upon him) said:
Whoever swears an oath and then sees something better than it, let him expiate his oath and do what is better.Reported by Muslim, from Abu Hurayra, Adiyy ibn Hatim and Abu Musa al-Ash'ari ; and in the two Sahihs, from Abd al-Rahman ibn Samura
And in the two Sahihs, from Abu Hurayra, the Prophet (peace be upon him) said:
For one of you to persist stubbornly in his oath regarding his family is more sinful for him than to give the expiation Allah has prescribed.Reported by al-Bukhari and Muslim