The three types of formulas people use in divorce

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The three types of formulas people use in divorce

Al-Bukhari said: whoever persists stubbornly in his oath regarding his family commits a greater sin. The verb "yalij" (to persist) comes from obstinacy (lajaj); this is why these oaths are called "vows of obstinacy and anger".

The formulas by which people pronounce divorce are of three types:

• The formula of immediate and absolute effect: "you are divorced" or "you are repudiated": the divorce falls by it, by consensus of the Muslims.
• The formula of oath: "the divorce is binding upon me to do this, or not to do it": this is an oath, by agreement of the people of language, of the factions of the jurists, of the common people and of all the inhabitants of the earth.
• The formula of suspension: "if I do this, my wife is divorced". If the swearer thereby meant the oath, detesting the occurrence of the divorce absolutely as he detests leaving his religion (as in "if I do this, I am a Jew", or the Jew saying "if I do this, I am a Muslim"), its ruling is that of the oath by the qasam formula, by agreement of the jurists.

The oath, indeed, is what contains urging, forbidding, confirmation or denial, binding upon the swearer what he hates to see occur in case of violation; the swearer is only a swearer if he detests the occurrence of the sanction upon the condition. If he wishes the sanction to occur upon the condition, whether he wants only the condition without detesting the sanction, or wants both, it is not an oath; but if he detests the condition and the sanction absolutely, binding himself to the sanction upon the condition in order to forbid himself or another what is intended, or to urge it, then it is an oath.

If he means to pronounce the divorce upon the sanction, saying "if you give me a thousand (dirhams), you are divorced", "when you are pure, you are divorced", or "if you commit fornication, you are divorced", intending the pronouncement of divorce upon the indecent act and not the mere oath, it is not an oath and there is no expiation for it, as far as we know, with any jurist; the divorce falls when the condition occurs, according to the early generations and the majority of the jurists.

The oath aiming at urging, forbidding, confirming or denying, binding upon it what he hates to see occur in case of violation, is an oath among all people, Arabs and non-Arabs, whether pronounced by the formula of the qasam or that of the sanction. Speech is an oath just as it is a command, a prohibition or a report; this meaning is established among all peoples: languages vary in words, not in meanings. What has the meaning of an oath, a command or a prohibition among the non-Arabs has that meaning among the Arabs. It is also the oath of the Companions, may Allah be pleased with them: an oath in the general usage and among all the jurists.

When it is an oath, the Book and the sunna allow only two rulings for it: either the oath is contracted and honored, and the expiation applies; or it is not, like the oath by creatures, the Ka'ba and the angels, without expiation by consensus. As for a contracted, honored oath without expiation, that is a ruling existing neither in the Book of Allah nor in the sunna of His Messenger (peace be upon him), with no sound legal proof. If these oaths belong to the oaths of the Muslims, they fall under the word of Allah to the Muslims, "Allah has already ordained for you the dissolution of your oaths"; if they do not belong to them but fall under the oath by creatures, no expiation nor anything else is due upon breaking, and the oath is void.

These proofs from the Book, the sunna and careful examination show that compelling the swearer to the occurrence of the divorce is a ruling contradicting the Book and the sunna; the other view suffices to belong to the domain of ijtihad. As for claiming that it is not incumbent upon all the Muslims to act upon this view and that it is unlawful for them to act upon the other, no scholar of the Muslims says this once the disputes among the Muslims and their proofs are known. Whoever holds the weaker view without knowing the preponderant one: it suffices that his view be permissible and that he not be prevented from ruling and answering by it. But compelling the Muslims to this view and forbidding them the one supported by the Book and the sunna contradicts the command of Allah, of His Messenger and of His believing servants among the four imams and others. Whoever prevents the ruling and the fatwa of the non-occurrence of the divorce and the following of those who deny it contradicts the Book of Allah, the sunna of His Messenger and the consensus of the Muslims; only the man without knowledge does so: he may be excused, without it being obligatory to follow him; he is a stubborn man following his desire, who does not accept the truth when it appears to him, nor the one who states it so that he may know its content; he follows his desire without guidance from Allah. The mere follower cannot invalidate the view contradicting his master the way one who knows it is false would, since he does not know that it is false; all the more so forbid the view and impose that of his predecessor. The mujtahid, however, examines and debates: even when his view appears, he cannot invalidate the view of his rival so long as ijtihad remains permissible therein and so long as it does not appear to contradict a text or a consensus. Whoever departs from the bounds of permissible following and ijtihad resembles those of whom it is said: "And when it is said to them: follow what Allah has sent down, they say: rather, we follow that upon which we found our fathers"; he follows his desire without guidance from Allah. And whoever claims that the one who follows this fatwa will thereafter beget a child of adultery is in the utmost ignorance, misguidance and opposition to Allah and His Messenger.

In sum: if what is undertaken is a means of drawing near to Allah the Most High, aiming at His nearness, performing it or the expiation binds him; if he undertakes what is not a means of drawing near, such as divorce, sale, hire and the like, it does not bind him, but the expiation of the oath suffices, according to the Companions and the majority of the Muslims: this is the view of al-Shafi'i and Ahmad, one of the two narrations from Abu Hanifa, and the view of the verifying ones among the companions of Malik. For the one swearing by divorce, on the mode of the oath, detests its occurrence upon the occurrence of the condition, just as he detests the occurrence of disbelief: the divorce does not fall and the expiation is due from him. And Allah knows best (Majmu' al-Fatawa, vol. 33, p. 131-144).

Ibn al-Qayyim (may Allah have mercy on him) said: the people agree that if he says "if I do this, I am a Jew or a Christian" and then breaks his oath, he does not thereby become a disbeliever if he intended the oath, for the aim of the oath is to keep away from disbelief. By this and similar arguments, the shaykh of Islam Ibn Taymiyya established that the oath by divorce and by manumission resembles the vow of obstinacy and anger, and the oath by the formula "if I do this, I am a Jew or a Christian"; he reported the unanimous agreement of the Companions regarding manumission, and others reported their agreement regarding the oath by divorce, namely that it does not bind.

It is established from Ali ibn Abi Talib (may Allah ennoble his face in paradise) that he answered so, with no contradictor known among the Companions; Ibn Bazzaza mentioned it in his Sharh of the ahkam of Abd al-Haqq al-Ishbili. His opponents strove to refute it by every possible means, and the summary of their objections comprises four points: first, that it contradicts the decree of the ruler; second, that it contradicts the four imams; third, that it contradicts the analogy with the intended condition and sanction, as in "if you release me from the dower, you are divorced", and she does it; fourth, that practice continued contrary to this view, so that it is not heeded. He refuted their proofs and established nearly thirty arguments for the soundness of this view, and he wrote on this question nearly a thousand pages, then went on his way hoping from Allah one reward or two; he and his opponents will dispute before their Lord on the Day of Resurrection (I'lam al-Muwaqqi'in, vol. 2, p. 133-134).

Ibn al-Qayyim says further in Ighathat al-Lahfan: as for your claim that the one who swears by divorcing his wife that he will drink this wine or kill this man has no escape from this evil, and from the occurrence of the divorce, except through a legal trick, the answer is: yes, by Allah, Allah has prescribed for him what he may free himself with, and his release has many paths; the trick, which is deception and cunning, is therefore not necessary. Here are several paths, each followed by a group of jurists from the early and the later generations.

• First path: that of those who say this oath does not contract at all and no breaking is due upon it, whether pronounced by the formula of the oath ("the divorce is binding upon me to do this"), by the intended suspension ("if the sun rises, or if you menstruate, or if the first of the month enters, you are divorced"), or by the suspension intended as the oath of urging, forbidding, confirming or denying ("if I do not do this, or if I do this, my wife is divorced"). This is the choice of the greatest of al-Shafi'i's companions who sat with him or ranked above them, Abu Abd al-Rahman, the greatest of the proponents of the variant views (ashab al-wujuh) attributed to al-Shafi'i; it is also the madhhab of most of the Zahiris, for whom divorce, like marriage, accepts no suspension; and their opponents did not refute them with a compelling proof.
• Second path: that of those who say the sworn divorce does not fall, nor the sworn manumission, but the expiation of the oath is due upon breaking: this is the madhhab of Ibn Umar, Ibn Abbas, Abu Hurayra, Aisha, Zaynab bint Umm Salama and Hafsa regarding the oath by manumission, which is a means of drawing near to Allah, among the dearest, extending to the ownership of others. What then of the oath by divorce, the most hateful of lawful things to Allah the Most High and the dearest of things to the devil? Such was the ruling these Companions gave to the slave woman who swore that all her slaves would be free if she did not separate her slave from his wife: "expiate your oath, and leave the man with his wife".

These Companions were the most perceptive in the religion of Allah, to the point of answering with the expiation for the oath by manumission while considering it an oath: it cannot be believed that they consider the oath by manumission an oath, and that for the oath by divorce they neither consider it an oath nor bind the breaker to the occurrence of the divorce. No jurist who has smelled the scent of knowledge finds, between these two doors and these two suspensions, any difference whatsoever. If Ahmad did not take it, it is because it reached him only through the path of Sulayman al-Taymi, whom he believed to be its sole transmitter, whereas Muhammad ibn Abdallah al-Ansari and Ash'ath al-Hamrani corroborated it; that is why Abu Thawr took it once it was established for him.

• Third path: that of those who say the oath by divorce is nothing; this is soundly established from Tawus and Ikrima.

Tawus: Abd al-Razzaq reported, from Ma'mar, from Ibn Jurayj, from Ibn Tawus, from his father, that he did not consider the oath by divorce to be anything. Some zealots for imitation and for their schools rejected this report, claiming that Abd al-Razzaq cited it in the chapter of the coerced person's oath, so as to read it as an oath by divorce pronounced under coercion; this objection is invalid, for the proof lies not in the chapter heading but in what is narrated within the chapter, especially with the early ones such as Ibn Abi Shayba, Abd al-Razzaq and Waki', who cite within the body of the chapter reports that do not match the heading, though connected in some way; this is more evident in their books than anything that could remain hidden, and it occurs in the Sahih of al-Bukhari and elsewhere, as well as in the books of the jurists and other authors. Even had Abd al-Razzaq understood it within the coerced person's oath, his understanding is not the proof but his report; and what benefit would there be in restricting the oath by divorce to that? Every coerced person, whatever oath he swears, sees his oath as void.

Ikrima: Sunayd ibn Dawud reported in his tafsir, from Abbad ibn Abbad al-Muhallabi, from Asim al-Ahwal, from Ikrima, about a man who said to his slave: "if I do not flog you one hundred lashes, my wife is divorced": that he neither flogs his slave nor divorces his wife, "this is among the steps of the devil".

If one joins this report to that of Ibn Tawus from his father, to that of Ibn Abbas concerning the slave woman who said to her maidservant "if I do not separate your slave from your wife, all my slaves are free", and to the abundant reports from Ibn Abbas on the oath by the forbidden pronounced by a wife, which is an expiating oath, the position of Ibn Abbas and his companions in this chapter becomes clear. If one adds to it the reports of the Companions on oaths by suspensions, such as hajj, fasting, charity, the sacrificial animal and walking barefoot to Mecca, "which are expiating oaths", the reality of the Companions' position appears. And if one adds to it the sound analogy, in which the ruling of the origin and that of the branch are equivalent, the agreement of the analogy and these reports becomes clear. Ascending yet another degree and weighing it all against the texts of the Quran and the sunna, the preponderant and the rejected become clear. Despite all this, no one is obliged to resist the ruler; and whoever says "I ruled and my ruling stands" has only the help of Allah to invoke.

• Fourth path: that of the one who distinguishes between swearing upon his wife's act, swearing upon his own act, and swearing upon other than the wife. If he says to his wife "if you leave the house, or speak to a man, or do this, you are divorced", no divorce falls by her act; but if he swears upon his own act or upon other than his wife, then breaks his oath, the divorce binds him.

This is the view of the most perceptive of Malik's companions absolutely, al-Ashhab ibn Abd al-Aziz, and its place in the science of fiqh is not hidden. Its basis is that, if the woman does it to divorce herself, no divorce falls: she is treated by the contrary of her intent, according to the principles of Malik and Ahmad and those who follow them, just as the one fleeing inheritance or zakat is treated by the contrary of his intent, as are the killer of his heir, the beneficiary of a bequest, and the one entrusted with a manumission mandate. That is fiqh, all the more since the husband did not intend her divorce, but to urge her or forbid her, and to keep her from what harms him; how could her act be the cause of his greatest harm? He did not grant her that by agency or option, and Allah did not grant it to her by dissolution; how would separation at her will, staying with him if she wishes or leaving him if she wishes, come about by her mere urging or forbidding? What fiqh is more beautiful and more fitting to the principles of the shari'a! Ibn Abi Zayd al-Qayrawani (may Allah have mercy on him) set it out in his notes: the apparent meaning of the author's words would be that dissolution occurs by mere apostasy, even if the apostate of the two spouses intended by his apostasy to dissolve the marriage; it is not so; it must be restricted to the absence of that intention, as Malik said, else the apostate be treated by the contrary of his intent and the marriage not dissolved. Accordingly, if the apostate of the two spouses returns to Islam, the marital bond remains, with no need for a new contract nor a return. Likewise, if the apostate intended by his apostasy to deprive his heir, he is treated by the contrary of his intent in inheritance, while being called to repent for three days; then he is killed if he does not repent. Likewise, Malik said that if the husband says to his wife "if you do this, you are divorced" and she does it intending to break his oath, there is no breaking, treating her by the contrary of her intent: al-Ashhab chose this, Ibn al-Qasim contradicted him holding for the breaking, and Imam Khalil followed the latter for it is the view of the Mudawwana; the shaykhs have never ceased preferring the former and weakening al-Ashhab's wording that agrees with Malik on the non-dissolution of the apostate woman's marriage when she intends by her apostasy the dissolution of her marriage. The shaykhs distinguished the question of apostasy from that of divorce: the suspension of divorce upon the wife's act proceeds from the husband by his choice, which is why breaking occurs by her act even if she intended to make him break his oath, for he is the suspender, as it were the pronouncer, having authorized by the suspension the act suspended; unlike her apostasy, which proceeds from her by her choice intending her repudiation, whereas the preservation of the bond is not in her hand: the divorce would not fall upon the man; and were it to fall, women would conspire to separate their husbands by dominating them (al-Fawakih al-Dawani, vol. 2, p. 25).

• Fifth path: that of the one who separates the oath by the formula of condition and sanction from the oath by the formula of obligation. The first: "if I do this, or if I do not do it, you are divorced"; the second: "the divorce is binding upon me, or due to me, or the divorce is upon me if I do this or do not do it". In this second category, the divorce does not bind him upon breaking, unlike the first.

This is one of the three views of al-Shafi'i's companions, and it is reported from Abu Hanifa and his early ones; the author of al-Dhakhira and Abu al-Layth mentioned it in his answers. Abu al-Layth said: if he says "your divorce is upon me as an obligation, a binding duty, a requirement or an established fact", some of our later ones said that one revocable divorce falls, whether he intended it or not, and others said that none falls even if intended; the criterion for distinction is custom. The author of al-Dhakhira said: according to this dispute, if he says "if you do this, your divorce is upon me as an obligation" or "as a binding duty", and she does it: al-Quduri reported in his Sharh that, according to Abu Hanifa's view, no divorce falls in any case; according to Abu Yusuf, it falls in all cases if he intended the divorce; and it is reported from Muhammad that it falls with "binding" and not with "obligation". Al-Sadr al-Shahid chose the occurrence in all cases, whereas Zahir al-Din al-Mirghinani answered with non-occurrence in all cases: such are the words of the author of al-Dhakhira.

As for the Shafi'is: Ibn Yunus said in his Sharh al-Tanbih that if he says "the divorce and the manumission are due to me" and intends them, they bind him, for divorce and manumission occur by allusion with intention; this word is ambiguous, and it was therefore treated as an allusion. Al-Ruyani said that "the divorce is due to me" is explicit, and he counted it among the clear formulas of divorce, perhaps because its usage predominantly intends divorce. Al-Qaffal said in his answers that it is neither explicit nor allusive, so that no divorce falls by it even if intended, for divorce requires being attributed to the wife, which is not realized. Our shaykh reported this view from some of Ahmad's companions: the dispute thus exists in all four madhhabs according to the transmission of their companions in their books. To this distinction is added a basis sounder than the one mentioned by the commentator: divorce cannot be the object of an undertaking; it is the tatliq (the act of divorcing) that can; divorce is what falls upon the wife and becomes binding upon her, whereas what the man undertakes is the tatliq; divorce is binding upon her as soon as it falls. Hence the undertaking of tatliq does not entail the occurrence of the divorce: if he says "I am obliged to divorce you, or I have an obligation before Allah to divorce you, or your divorce is to me a binding duty or a requirement", then breaks, no divorce falls upon him; likewise if he says "if I do this, the divorce is binding upon me": he undertook only the tatliq, and divorce does not fall by mere undertaking. The proponents of occurrence reply: he undertook the ruling of divorce, namely the departure of the private part from his ownership, whose ruling binds him once it occurs; this undertaking therefore entails its occurrence. The others reply: its ruling binds him only when he brings about its cause, which is the tatliq; yet he did not bring it immediately, but suspended; the undertaking of immediate tatliq does not bind, how then that of suspended tatliq? The equitable, clear-sighted man knows the sound view; success comes from Allah.

The one who distinguished divorce from the oath by divorce was the judge Abu al-Walid Hisham ibn Abd Allah ibn Hisham al-Azdi al-Qurtubi, in his book Mufid al-Hukkam, in the chapter on divorce, after mentioning the disagreement of Malik's companions over binding oaths: this question must not be received by mere transmission, unless the light of understanding illuminates it and the tongue of proof explains it. Divorce as pronouncement and the oath by divorce differ: in the Mudawwana there are two distinct books, one for divorce itself, the other for oaths by divorce; beyond that, it is fiqh in general. The form of divorce in the shari'a is a dissolution (hall) arriving upon a contract, whereas the oath by divorce is a contract: this must be understood. Being a contract, no dissolution comes from it unless an intention carries it from the place of contract to the place of dissolution, moving the word from its proper meaning to its allusive one. This question arose in the days of al-Hajjaj, after the shari'a had established its foundations, branches, realities and figurative meanings, in the oaths of sale; the oaths of divorce contain only what follows. Divorce is of two types: explicit and allusive; the allusive is of two types: predominant allusion and non-predominant allusion. The predominant allusion indicates the establishment of divorce by the placement of the language or the shari'a, as in "return to your family, and observe the waiting period"; the non-predominant allusion does not indicate the establishment of divorce, as in "hand me the garment", followed by "I intended thereby the divorce". If one confronts the word of the oath with the explicit of divorce, it is not of its category; if one confronts it with the allusion, it is of neither of its two categories, except with an indicator, a present witness, an established usage, or an intention accompanying the word. If the witness of the moment or the usage fluctuates in interpretation, standing upon the intention becomes difficult, and it behooves neither a judge nor anyone else to extend his pen to a fatwa before contemplating such meanings: a ruling not arising from an intellectual light indicating the connected meaning becomes obscure.

He then said: I remind you of what reached me of the words of the scholars and what I saw of the jurists' views on this oath, which is a new oath not occurring in the first era; he then mentioned the disagreement of the people of knowledge over the binding oath. The point is that he established the natural, rational and legal difference between pronouncing the divorce and swearing by it: two doors truly distinct in their realities, their aims and their formulas, whose difference in ruling is necessary. As for the reality: divorce is dissolution and severance, the oath is contract and undertaking, as confirmed by the word of the Most High:

"But He will take you to task for the oaths you solemnize."

Surah Al-Ma'idah, 5, 89

As for the ruling: the oath being a contract, no dissolution comes from it unless one passes from the place of contract to the place of dissolution; it is clear that the Legislator did not transfer it, so the oath remains upon that for which it was instituted. Certainly, if the swearer intends thereby pronouncing the divorce upon breaking, he used it as both contract and dissolution: it becomes an allusion to the occurrence, which he intended, and the divorce falls by it, for this contract lends itself to allusion and the intention has paired with it. But if he intended only the contract, not intending at all the divorce, which is the most hateful thing to him, he brought nothing that transfers the oath from its legal place, and the Legislator did not transfer it: nothing binds him then but the requirement of the oath. Let the equitable, knowledgeable man contemplate this difference and remove his heart, for a moment, from partisanship, imitation and following what is not proof. As for the aim: the swearer's aim is urging, forbidding, confirmation or denial, whereas the divorcer's aim is to separate from his wife, without urging, forbidding, confirmation or denial crossing his mind: the equivalence between the two is clear. As for the difference of formulas: the formula of the oath requires a sworn undertaking with the answer of the oath, or a conditional suspension intending the absence of the condition and the sanction, or the occurrence of the sanction upon the occurrence of the condition, though he hates it and intends its absence: what is negated in the first is affirmed in the second; the formula of pronouncement contains none of that. Whoever conceives this correctly judges rightly in this question; Allah grants success (Mufid al-Hukkam, vol. 2, p. 154-162).

• Sixth path: that the meaning for which the oath was sworn ceases; if he then does the sworn matter, there is no breaking, for his abstention had a cause, which disappears with it. This is a regular principle of the shari'a and of the rules of the madhhab of Ahmad and of those who take intention and purpose into account in the oath, in specification, generalization, absolutization and restriction.

If he swears "I will not speak to such a woman" and the cause of the oath was that she was a stranger whose speech he feared would harm his honor, then he marries her, there is no breaking in speaking to her, applying the cause of the oath that stirred it, namely her being a stranger; this, so long as he had no intention so long as she was a stranger; if he had one, restricting the oath poses no problem. Likewise: one who swears not to speak to a certain man nor associate with him because he was a child, then the child becomes a man, while his intention and the cause of his oath concerned his childhood. Likewise: one who swears "I will not enter this house" because of someone whose accusation he feared for entering it, then that man dies or travels and he enters: there is no breaking; Abu Hanifa and Abu Yusuf answered so for the one who swore "I will not enter the house of so-and-so, nor speak to his slave", then the man sold the slave and the house. Likewise: one who swears not to speak to a certain man because he neglected prayer, practiced usury, drank wine or was a guardian, then he repented of all of it: the attribute for which he swore having vanished, there is no breaking in speaking to him. Likewise: one who swears "I will not marry such a woman" because an attribute touched her, such as debauchery or the like, then that attribute disappears: there is no breaking in marrying her.

All this proceeds from considering the aims the words indicate: when the purpose appears, it is the one taken into account, and the word is restricted to it. If he swears "he will certainly fulfill his right tomorrow", and his purpose or cause was that it not be exceeded, then he fulfills it before, there is no breaking; if he swears not to sell his slave for less than a thousand, then sells him for more, there is no breaking; if he swears not to leave the town without the ruler's permission, then is dismissed, there is no breaking in leaving without his permission, the purpose and cause requiring the restriction so long as it persists. Likewise, if he makes his wife, his slave or his maidservant swear not to go out without his permission, then divorces, frees or sells her, there is no breaking in their going out without his permission, the cause and purpose requiring the restriction most manifestly. The parallels are very numerous. The other jurists take it into account, though they differ in many places, and this is the sound view: words are considered only for their indication of aims; when the purpose appears, it is the one taken into account and the word is restricted to it. Thus, one invited to lunch who swears not to eat lunch: his oath is restricted to that particular lunch, the intention, the cause and the object of the oath requiring nothing else.

The Prophet (peace be upon him) said: "deeds are only by intentions, and every person will have only what he intended"; what he did not intend by his oath, or what the cause does not require, cannot be imposed upon him while it is established that he did not intend it and nothing of it crossed his mind. More than one jurist answered in this sense, among them Ibn Aqil and our shaykh, concerning the one who is told "your wife has left your house, or has committed fornication with so-and-so", and answers "she is divorced", then learns that she did not leave the house, that the accusation concerns a distant land one cannot reach her in, or that she was dead when the accusation was made, and all that establishes she did not fornicate: no divorce falls upon him, for he divorced her only on the basis of that cause, which is like a condition in her divorce. And this is precisely what the madhhab and the rules of fiqh do not require: they said that if he says to her "you are divorced" and specifies "I meant it for the case where you stand up", he is believed and no divorce falls by it; it is the same case. Likewise what they said of the mukatab who paid his master and was declared free by him, then it turned out that the money paid was owed or usurious: the manumission does not occur, though he pronounced it explicitly; the companions of Ahmad and al-Shafi'i mentioned it, for he freed him only on the basis of the soundness of the compensation, which failed him. All the rules of the shari'a rest upon the fact that a ruling established for a cause vanishes with its vanishing; the examples exceed all enumeration. This path saves from much breaking of oaths. In contemplating these paths you will see that each is more beautiful than the tricks by which they seek to avoid the breaking (Ighathat al-Lahfan, vol. 2, p. 87-96).

Ibn al-Qayyim says in I'lam al-Muwaqqi'in: among this chapter is the oath by divorce and manumission. Compelling the swearer to the divorce of his wife and the manumission of his slave upon breaking is a fatwa that arose after the passing of the era of the Companions; it is preserved from no Companion that divorce was bound upon him by the formula of the oath, ever. What is preserved is the binding of the divorce by the formula of condition and sanction intending the divorce upon the occurrence of the condition, as in the Sahih of al-Bukhari, from Nafi': a man irrevocably divorced his wife if she went out, and Ibn Umar said: "if she goes out, she is separated from him; if she does not go out, there is nothing". None contests this except the one who categorically prevents the occurrence of divorce suspended upon a condition. As for the one who separates the pure qasam from the suspension meant for occurrence, he accepts all the reports transmitted from the Companions in this chapter: it is established from them that they gave the fatwa of occurrence in some forms and the fatwa of non-occurrence in others; the sound position is what they answered in both categories, without taking part of their fatwas and leaving another part.

As for the occurrence, what is preserved from them is what al-Bukhari reported from Ibn Umar, and what al-Thawri reported from al-Zubayr ibn Arbi, 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", this being however an interrupted chain. Likewise what al-Bayhaqi and others reported from Ibn Abbas about a man who said to his wife "she is divorced within a year", and he said: "he may enjoy her during the year". And among that is the word of Abu Dharr to his wife, when she pressed him with questions about the Night of Decree: "if you ask me again, you are divorced".

Yet here there is a fine point worth noting: Abu Dharr had asked the Prophet (peace be upon him) about the Night of Decree, pressing him, until the Prophet (peace be upon him), at the end of his questioning, said to him: "seek it in the last ten nights, and ask me nothing after this". He then narrates: "I waited for his inattention and said: I adjure you, O Messenger of Allah, by the right I have over you, to tell me in which of the ten nights it is. He became angry with me with an anger such as he had never shown before or after, then said: seek it in the last seven nights, and ask me nothing after that" (reported by al-Nasa'i and al-Bayhaqi). What befell Abu Dharr from his wife, and from her insistence, was what provoked his anger, and he said: "if you ask me again, you are divorced".

Such are all the preserved reports from the Companions on the occurrence of the suspended divorce. As for the reports from them to the contrary, it is established from Aisha, Ibn Abbas, Hafsa and Umm Salama, concerning the one who swore that all her slaves would be free if she did not separate her slave from his wife, that she expiates her oath and does not separate them (I'lam al-Muwaqqi'in, vol. 3, p. 54-55).

Divorce suspended upon a future event

The jurists of the four madhhabs agree that when the husband suspends the divorce of his wife upon a matter whose occurrence is possible but not predominant, such as entering a house: "if you enter the house, or if you speak to Zayd, you are divorced", "if Zayd arrives, you are divorced", or "if you eat, drink or wear clothes, you are divorced", the divorce is not pronounced immediately: one awaits the occurrence of the object of the condition; if it occurs, it binds him; if not, not.

They nevertheless disagreed if he suspends the divorce upon a future matter whose occurrence is certain rationally, such as "you are divorced when the sun rises" or "when Ramadan enters", or predominant, or doubtful presently but ascertainable later, or forever inaccessible: is the divorce pronounced immediately, or does it not occur before the existence of the condition? The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis, hold that if he suspends the divorce of his wife upon a condition that is not impossible, the divorce does not occur before the existence of the condition, based on the saying of the Prophet (peace be upon him): "the believers are bound by their conditions", and because he suspended the divorce upon a condition that is not impossible, as if he had suspended it upon the arrival of Zayd.

Added to this is that Ibn Abbas (may Allah be pleased with him and his father) used to say, about the man who says to his wife "you are divorced at the head of the year": "let him have relations with her until the head of the year" (reported by al-Bayhaqi in al-Sunan al-Kubra, no. 14868). And because the removal of ownership validly admits suspension by attributes, as with manumission: as soon as he suspends it upon an attribute, the divorce does not occur before it, as in "you are divorced when the pilgrim arrives". This is not dating the marriage, but dating the divorce, which is not forbidden, just as marriage cannot be suspended upon a condition whereas divorce accepts suspension (Mukhtasar Ikhtilaf al-'Ulama, vol. 2, p. 438-440 ; al-Mabsut, vol. 6, p. 114 ; al-Lubab, vol. 2, p. 87-88 ; Mukhtasar al-Waqi'a, vol. 1, p. 400-401 ; al-Muhadhdhab, vol. 2, p. 92-93 ; al-Hawi al-Kabir, vol. 10, p. 192-194 ; al-Bayan, vol. 10, p. 135 ; Asna al-Matalib, vol. 3, p. 306 ; Maratib al-Ijma', p. 72 ; al-Ifsah, vol. 2, p. 178 ; al-Mughni, vol. 7, p. 324-325 ; al-Kafi, vol. 3, p. 212).

The Malikis, however, hold that the husband who suspends the divorce upon a future matter whose occurrence is certain rationally, such as "you are divorced when the sun rises, or when Ramadan enters", or "you are divorced after a year", or upon a predominant matter, or one doubtful presently but ascertainable later, or forever inaccessible, pronounces the divorce immediately. The cases are as follows:

1. If he suspends the divorce upon a matter whose occurrence is certain by custom and such that the lifespans of both spouses customarily reach it, as in "you are divorced after one year": the posteriority of the year is certain by custom and their two lives customarily reach it, so the divorce is pronounced immediately, unlike "you are divorced after eighty years". If he says "you are divorced on the day of my death, or an hour before it", it is pronounced immediately, for this then resembles the marriage of enjoyment (mut'a): he rendered her intimacy lawful until a known term that his life reaches on the face of it; there is no difference between "a month before my death" and "before your death". If he says "you are divorced after my death or yours, or if I die", nothing is upon him, for there is no divorce after death. It is therefore required, for occurrence, that their two lives together reach the term; if only one of the two spouses is expected to reach it, the divorce is not pronounced, for if each of the two spouses reaches the term on the face of it, this resembles the marriage of enjoyment in every respect; but if only one of them reaches it, the term does not arrive except with separation by death, and it no longer resembles the marriage of enjoyment. The categories are therefore four: either the term is such that their two lives reach it, and it binds him; or they do not reach it, or only he reaches it, or only she: these three cases involve nothing upon him, for a dead woman does not divorce and a dead man is not commanded to divorce.
2. If he says "if the sky rains, you are divorced", the divorce is pronounced immediately, for rain is a matter whose occurrence is certain by custom. If he says "if the sky does not rain, you are divorced", the divorce is pronounced immediately, for the absence of rain is certain by custom, it not being within his power; the first is an oath of piety, the second a breaking. If he says "if I stand up, or if Zayd stands up, or if I sit, or if I eat, or if Zayd sits or eats", for every act man cannot patiently abstain from, the divorce is pronounced immediately in the oath of piety, unlike the breaking, such as "if I do not stand up and do not eat", where one waits; likewise one waits in the oath of piety for what man can patiently abstain from, as in "if you enter the house".
3. If he suspends the divorce upon a matter legally obligatory, as in "if I pray, or fast Ramadan, you are divorced", the divorce is pronounced immediately, whether he prayed the five prayers or fasted Ramadan or not, by virtue of the obligation upon him in the shari'a; likewise "if Zayd prays".
4. If he suspends the divorce upon a predominant matter, as in "if you menstruate" said to a woman other than a menopausal one, for whom menstruation is of her nature, or to a young girl from whom menstruation is expected, even after ten years: the divorce is pronounced immediately; unlike if he said it to a menopausal woman, in which case nothing is upon him, menstruation being for her a matter excluded by custom.
5. If he suspends the divorce upon a matter whose present state is unknown but knowable later, as concerning a woman whose pregnancy is established: "if you carry a male child in your womb, or do not, you are divorced": the divorce is pronounced immediately, without awaiting what she carries, because of the doubt at the time of the oath and the impossibility of remaining upon an intimacy in doubt. If he says "if this almond contains two kernels, or not one, you are divorced", the divorce is pronounced immediately, because of the doubt at the state of the oath; likewise "if this melon is sweet, or is not"; likewise "if so-and-so is among the people of paradise, or is not among them, you are divorced": the divorce is pronounced immediately because of the doubt in the present state, unless it is established with certainty that he is among them, like one of the ten given glad tidings of paradise and their like whom the text establishes as entering paradise. If he says to a woman whose pregnancy is not apparent "if you are pregnant, or if you are not pregnant, you are divorced", the divorce is pronounced immediately, because of the doubt over pregnancy and its absence; the woman is presumed not pregnant if, at the time of the oath, she was in a period of purity without relations; there is then no breaking in the oath of piety, "if you are pregnant, you are divorced", unlike the oath of breaking, "if you are not pregnant", in which he breaks, for her non-pregnancy is established.
6. If he suspends the divorce upon what one cannot know its state of now or later, such as the will of Allah, of the angels or of the jinn, as in "you are divorced if Allah wills, or if the jinn will, or unless Allah wills": the divorce is pronounced immediately, for we have no access to the will of the one mentioned, unlike "if Zayd wills, or unless Zayd wills", where his will is awaited.
7. If he suspends the divorce upon a possible matter but outside our capacity, as in "if the sky does not rain this month, or tomorrow, or on this day, by limiting it to a term in which presence and absence are possible, you are divorced": the divorce is pronounced immediately in the oath of breaking, as seen, unlike the oath of piety, as in "if the sky rains this month, you are divorced", where one waits: if the sky rains within the stated term, she is divorced, otherwise not, according to the more probable view, which is that of the majority; the contrary view pronounces it immediately as in the breaking.
8. If he suspends the divorce upon a forbidden act in the form of breaking, as in "if I do not fornicate, or do not drink wine, you are divorced", the divorce is pronounced, but by the decision of a judge in this particular case; unless the forbidden act is established before the pronouncement, in which case nothing is upon him, his oath being dissolved. Since a ruling was needed: if a mufti informs him of the occurrence of the divorce without a ruling, his wife's waiting period ends, she marries another, and then he performs the sworn forbidden act, his wife is returned to the first marital bond.

These rules are drawn from the Maliki works (al-Mudawwana al-Kubra, vol. 4, p. 194 ; al-Kafi, p. 266 ; al-Bayan wa-l-Tahsil, vol. 6, p. 175-177 ; al-Taj wa-l-Iklil, vol. 3, p. 78-88 ; Mawahib al-Jalil, vol. 5, p. 289-300 ; Sharh Mukhtasar Khalil, vol. 4, p. 55-62 ; al-Sharh al-Kabir with Hashiyat al-Dasuqi, vol. 3, p. 284-290 ; Tahrir al-Mukhtasar, vol. 3, p. 180-190 ; Hashiyat al-Sawi on al-Sharh al-Saghir, vol. 5, p. 363-373).

Imam Ibn al-Qayyim (may Allah have mercy on him) said: as for suspending the divorce upon a time that will inevitably come, such as the first of the month, of the year, the end of the day and the like, the jurists have four views. The first: she is not divorced in any way; this is the madhhab of Ibn Hazm and the choice of Abu Abd al-Rahman al-Shafi'i, among the greatest of the proponents of the variant views. Their proof: divorce accepts no suspension by condition, just as marriage, sale, hire and remission of debt do not accept it. They said: the divorce occurs neither immediately nor upon the arrival of the term; not immediately, because he did not pronounce it immediately; and not upon the arrival of the term, because no repudiation issued from him at that moment and nothing renewed except the arrival of time, and the arrival of time is not a divorce.

Others contested this view and said: the divorce occurs immediately; this is the madhhab of Malik and a group of the successors. Their proof: otherwise there would result a temporary permissibility of intimacy, which is not permitted in the shari'a, the permissibility of intimacy being possible only in an absolute, non-temporary manner; this is why the marriage of enjoyment is forbidden, because the term enters into it, and likewise intimacy with the woman of the progressive manumission contract. Do you not see that if he is freed unto a term, saying "if you bring me a thousand dirhams, you are free", that does not prevent intimacy? The proponents of pronouncement at the term reply: the ruling of permanence is not derived from the ruling of inception, the shari'a distinguishing them in many places: the inception of the marriage contract in a state of ihram is invalid, without its continuation; its inception with the woman in her waiting period is invalid, without its continuation; its inception with a slave woman in the presence of a long delay and without fear of hardship is invalid, without its continuation; its inception with a promiscuous woman is invalid according to Ahmad and those who follow him, without its continuation; the parallels are very numerous. The reason the marriage of enjoyment is forbidden is that the contract is temporary from its very origin, whereas this contract is absolute, and it only encounters what could invalidate and sever it, without invalidating it; just as if he suspended the divorce upon a condition knowing that she will do it or that he himself will inevitably, while its non-occurrence remains possible.

The third view: if the divorce suspended upon the arrival of a known term is triple, it occurs immediately; if it is revocable, it does not occur before the arrival of the term; this is one of the two narrations reported from Imam Ahmad. It is explicitly reported in the narration of Muhanna: if he says "you are divorced three times, one month before my death", she is divorced at once. Sa'id ibn al-Musayyab and al-Zuhri did not set times in divorce. Muhanna said: I asked him: "may he marry the woman to whom he said: you are divorced three times, one month before my death?" He answered: "no, but he will abstain from intimacy with her forever, until he dies". Ibn al-Qayyim comments: this statement is highly problematic; he pronounced the divorce immediately, how then is she forbidden to remarry? And his saying "he abstains from intimacy forever" indicates that she is his wife, without intimacy: this cannot coexist with the occurrence of the divorce, for when divorce occurs, all the rulings of the marital bond vanish. It may be said: he took a precaution, pronouncing the divorce and forbidding her remarriage because of the dispute over it: he forbade her intimacy, which is the effect of divorce, and forbade her remarriage because the marital bond is interrupted neither by consensus nor by text. The argument of this view: if the divorce is triple, intimacy does not become lawful again after the term, so the state of intimacy becomes temporary; if it is revocable, intimacy becomes lawful again after the term, and the state does not become temporary: this is more perceptive than the first view.

The fourth view: she is not divorced except upon the arrival of the term; this is the view of the majority. They dispute as to whether he is divorcing now, the arrival of the time being a condition for the effect of the divorce, as if he delegated it now saying "do not act until the head of the month": the arrival of the head of the month is a condition for the effect of his act, not for the obtaining of the delegation, unlike "when the head of the month comes, I have delegated you", over which al-Shafi'i distinguishes the two cases, validating the first and invalidating the second. Or he is not divorcing except at the arrival of the term: it is then estimated that he said "you are divorced" at that moment, the occurrence of the condition and the estimation of the saying "you are divorced" coinciding. According to the first hypothesis, the cause came first and the condition of its effect later; according to the second, the cause itself is deferred until the arrival of the time, as if he said: "when the head of the month comes, it is then that I say to you: you are divorced"; when the head of the month arrives, he is estimated to have uttered that word.

The Hanafi madhhab is that the condition prevents the existence of the cause: when the condition exists, the cause exists, so that its existence is attached to the condition, and before the condition is realized, that upon which it is suspended is not a cause; unlike the obligation, which is established before the arrival of the condition. If he says "if you enter the house, you are divorced", the cause of occurrence is the pronouncement of the divorce, and the condition is the entry; the condition prevents the existence of the cause before it, and as soon as it exists, the cause exists. Al-Shafi'i's companions say: the effect of the condition is the postponement of the ruling, the cause already existing, its effect merely postponed to the time of the arrival of the condition: the prior element is a cause whose effect is deferred to the arrival of the condition (Ighathat al-Lahfan, vol. 1, p. 172-174).