Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Repeating the formula and intentions
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Updated on 24 September 2026 at 7:46 PM
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
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 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.
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.
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.
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).
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).
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).
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:
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).