Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Talaq conditional, oath and delegation
Contents
Updated on 24 September 2026 at 7:46 PM
This seventh set of the chapter on divorce gathers ten sheets of the Encyclopedia of jurisprudence dealing with conditional divorce (ta'liq) and related matters: the oath forbidding the wife to go out without permission, going out for an authorized purpose then turning elsewhere, permission given without the wife's knowledge, the conditions of validity of divorce suspended on a condition, its lapse, the question of hadm (the second husband annulling the count of earlier repudiations), divorce suspended on two conditions, divorce suspended on the wife's wish, delegation of the divorce to the wife or to another, and divorce conveyed through a messenger. The positions of the four schools are reported with their Quranic and prophetic proofs and their classical references.
When a husband says to his wife: "If you go out without my permission, you are divorced", or "if you go out except that I permit you", "until I permit you", "unless I permit you" or "so that I permit you", the ruling on these five formulas is that as soon as she goes out without his permission she is divorced and his oath is released. The particle "if" does not require repetition: a single breach suffices, as if he had said "you are divorced if you wish". If he gives her permission and she goes out, there is no breach whatsoever, since there is no contradiction with the oath: this is a point of agreement among the jurists (al-Mabsut, 8/173; al-Hawi al-Kabir, 15/391; al-Mughni, 10/46; al-Kafi, 4/407; Sharh al-Zarkashi, 3/343; Kashshaf al-Qina, 5/354-355).
There remains the case where the husband permitted her, she went out with his permission and then went out afterwards without permission: is she divorced or not? Three categories arise.
Three doctrines contend over these five formulas.
The first is that of the Shafi'is and the Hanbalis in one transmission: the oath binds only once, without repetition in acquittal or in breach. If she goes out once with permission, he is acquitted and the oath is released, with no breach for a later going out without permission; if she goes out once without permission, there is a breach, the oath lapses, and a later going out without permission produces no new breach. The reason: every oath containing prohibition and enabling must have an acquittal matching the breach in repetition as in its lapse, like the formula of limit in the lapse of repetition and "each time" in its demand for it. Acquittal and breach in oaths are reckoned by the binding: if the binding requires repetition of the prohibition and the enabling, it requires repetition of the acquittal and the breach; otherwise there is none. The mark of repetition is absent from "if you go out except with my permission": the oath therefore binds once; it is present in "each time you go out without my permission": it therefore binds each time. Likewise, if he says "if you go out with my permission, you are divorced", the oath binds once; if he says "each time you go out with my permission, you are divorced", it is the same; but if he says only "each time you go out with my permission" (without a divorce clause), the formula bears on repetition while the oath does not attach to it: for if the object of the oath meets what its formula demands, its ruling is restricted to that (al-Hawi al-Kabir, 15/391, 394; al-Bayan, 10/303-304; Sharh al-Zarkashi, 3/343).
The second is that of the Malikis according to the famous view and the Hanbalis according to the school: the oath binds on repetition, in acquittal as in breach. If she goes out once with permission, he is acquitted without the oath being released; if she goes out once without permission, there is a breach without the oath lapsing: he suspended the divorce on a condition that occurred, and the divorce falls as if she had gone out without permission (al-Taj wa-l-Iklil, 2/325, 341; Sharh Mukhtasar Khalil, 3/78; Tahrir al-Mukhtasar, 2/398, 417; Manh al-Jalil, 3/35).
The Hanbalis add: if he says "if you go out without my permission, you are divorced", or "except with my permission, you are divorced", or "if you go out until I permit you, you are divorced", then permits her, she goes out, and then she goes out without permission: she is divorced. "You go out" is indeed an indefinite in a conditional context implying generality: it is true that she went out without his permission, unless he had the intention of permitting once and then permitted her, or said expressly "if you go out except with my permission once, you are divorced": in that case there is no breach for her later goings out without permission. Conversely, if he said "if you go out once without my permission, you are divorced", then permitted her, then she goes out without permission: there is a breach, for this second going out is unpermitted and falls under the oath, as if she had gone out from the start without permission. If he permits her each time she wishes, saying "go out whenever you wish", she is not divorced by her goings out: the permission being general, she never went out without his permission (al-Mughni, 10/46; al-Kafi, 4/407; Sharh al-Zarkashi, 3/343; Kashshaf al-Qina, 5/354-355).
The third is that of the Hanafis. If he swears his wife to divorce if she goes out without his permission and grants her one permission, the oath lapses: "so that" (hatta) marks the limit. Allah the Most High said:
"peace, until the emergence of dawn"
Surah Al-Qadr, 5
The oath is measured by its term, and from the limit follows that what comes after differs from what precedes: when the oath ends with a single permission, there is no further breach even if she goes out afterwards without permission, unless he intended to permit her each time: he then strengthens the command upon himself with a wording that bears it. If he says "do not go out except with my permission", permission is required for each going out, so that if she goes out once without permission there is a breach: he excepted a going out characterized by his permission, the letter "by" marking attachment, and every going out devoid of that characteristic is a condition of breach; the meaning of his words is "except asking permission". Allah the Most High said:
"and We do not descend except by the command of your Lord"
Surah Maryam, 64
that is, charged with that command. The same applies to "if you go out except with a veil, or except with a head-cover": if she goes out once without a veil or head-cover, there is a breach; but there is no breach for a going out exposed to inevitable drowning or burning. Only, if he had intended to permit her once, his good faith is accepted, not as a ruling since it contradicts the apparent: this is the view of Abu Yusuf, and the fatwa rests on him. The stratagem is to say to her: "whenever you wish to go out, I have permitted you". As for "unless I permit you", it has the same status: once a permission occurs, the oath no longer bears on it, for "unless that" has the meaning of "until" where a term is at stake; Allah the Most High said:
"unless you are surrounded"
Surah Yusuf, 66
that is, that you be surrounded (al-Mabsut, 8/173; Majma' al-Anhur, 2/286; Tanqih al-Fatawa al-Hamidiyya, 1/324).
If the husband says to his wife: "If you go out for anything other than the bath, or visiting a patient, or such a place, without my permission, you are divorced", and she goes out for the bath or for that place and then turns elsewhere, is she divorced? Three cases.
It is related in al-Mudawwana al-Kubra: (I say) what do you think of a man who swears not to permit his wife to go out except to visit a sick person, then permits her, she goes out to visit a sick person, then a need other than the visit arises while she is with the patient and she goes to it: does the husband breach his oath? (He answered:) he does not breach it. (I say:) what do you think if he swore not to permit her to go out except to visit a sick person, and she went out without permission to the bath or elsewhere: does he breach it? (He answered:) he does not breach it in my view, for the husband had not permitted her to go where she went, unless he learns of it and leaves her: if he learns of it and does not leave her, he does not breach it. (I say:) if he learns of it only after she has finished and returned? (He answered:) no breach, in my view. (Sahnun said:) something similar was related from Rabia: there is a breach for what is not the visit if he lets her stay, for he could have brought her back; by leaving her he therefore permitted her to go out (al-Mudawwana al-Kubra, 3/136).
The husband said "if you go out without my permission, you are divorced", then permitted her without her knowing and she went out: is there breach and divorce, or not? The jurists differed. Abu Hanifa, Muhammad, the Malikis and the Hanbalis according to the school hold that she is divorced. His purpose was "you shall not go out except through the means of my permission", and it is true that she went out without the means of his permission; permission is a ruling among the acts of the legally accountable which attaches to the one who states it and to what is stated, and when it is performed without the agent knowing that this ruling exists, the agent cannot be judged to have performed it in that sense, whose root is command and prohibition. Whoever swears that she shall not go out except with his permission thereby intends to prevent her from allowing herself to disregard it and to deter her from believing that she need not observe his permission, confining her conduct to his command and prohibition; this purpose exists only with her knowledge of the permission, which must therefore accompany it and be a condition of it: if it occurs without that, there is a breach. She went out with the same attribute as before the permission, that of disregarding it: it is as if she had gone out before his permission. Permission, moreover, is information; the same was said of the word of Allah the Most High:
"I have proclaimed to you all alike"
Surah Al-Anbiya, 109
that is, "I have informed you"; likewise:
"an announcement from Allah and His Messenger"
Surah At-Tawba, 3
that is, an informing; and:
"so accept a war from Allah and His Messenger"
Surah Al-Baqara, 279
that is, inform yourselves of it; the word derives from permission: I have placed it within your permission and informed you of it. Without knowledge there is no informing, hence no permission; and the permission of the Lawgiver in His commands and prohibitions is not established except after knowledge, likewise that of the human being: this is why the permission cannot exist from his side (al-Tajrid of al-Qaduri, 12/6485-6486; al-Ikhtiyar, 4/67; al-Ishraf 'ala nakt masail al-khilaf, 4/298, no. 1642; al-Taj wa-l-Iklil, 2/325; Sharh Mukhtasar Khalil, 3/78; al-Sharih al-Kabir with al-Dasuqi's gloss, 2/433; Tahrir al-Mukhtasar, 2/398; al-Mughni, 10/47; al-Mubdi', 7/359; Kashshaf al-Qina, 5/355; al-Rawd al-Murbi', 2/400).
The Shafi'is, Abu Yusuf among the Hanafis, Malik in one transmission and the Hanbalis in one view hold that if the husband swore her to divorce if she goes out without his permission, feared she would go out without permission in his anger, contrived to permit her without her knowing, and she then went out: there is neither breach nor divorce, for she went out after the permission existed from his side; there is no more breach than if she had known, just as if someone dismisses his agent: the dismissal stands even if the agent does not know of it; likewise she becomes permitted without knowing. Permission is indeed the prerogative of the one who grants it, and knowledge of it the prerogative of the one who benefits; his oath was bound only to what belongs to him, the permission, not to what belongs to her, the knowledge. The name "permission" applies to his permission without her knowledge: his being the sole one to permit must therefore suffice for the existence of the condition, and the breach does not fall through it; just as if he says "if I stand up, you are divorced": she is divorced by his standing without her knowing. If knowledge were a condition of the permission, the knowledge of the one swearing would be a condition too; yet it is established that if she learns of it from someone else, it is valid, while if someone else permits her, it is not: this proves that knowledge is excluded from the rights of the permission, which is valid by the mere word. Moreover, he forbade the going out by oath and allowed the going out by permission: his bond with her combines prohibition and permission, and when permission meets permission while the one benefiting knows nothing of it, the rule of permission applies without the prohibition, like one who takes possession of property whose owner permitted him while unaware of that permission: the rule of permission applies to the property by virtue of the one who grants it, without the prohibition by virtue of the one who takes it; such is the ruling of this going out; its clarification: it is a permission after a permission, and the lack of knowledge has no effect on it as it would on property. She does not know of his permission, sometimes because of distance, sometimes sleep: it is agreed that if he permitted her while she slept and she went out unaware, there is no breach; likewise if he permitted her while she was far away and she went out without knowing he had permitted her: no breach; its clarification: it is an oath whose acquittal is suspended on the permission, so the lack of knowledge must not cause the breach, as with the sleeper and the forgetful (al-Hawi al-Kabir, 15/397-398; al-Ikhtiyar, 4/67; Tahrir al-Mukhtasar, 2/398; al-Tanbih, 1/179; al-Muhadhdhab, 2/96; Jawahir al-Uqud, 2/111; al-Mughni, 10/47; al-Insaf, 9/99).
Five conditions are required for divorce suspended on a condition to take effect.
The Hanafis say: with these particles, when the condition occurs the oath is released and the divorce takes effect, that is, if the condition occurs once the divorce takes effect by it and does not occur a second time: linguistically they require neither generality nor repetition; with the act occurring once the condition is fulfilled and the oath has no ground, the effect of the condition having ceased by its single occurrence. Exception: "each time" (kullama): the divorce repeats with the repetition of the condition until three divorces fall, for "each time" requires the generalization of acts. Allah the Most High said:
"each time their skins are burned away, We replace them with new skins"
Surah An-Nisa, 56
and He said:
"each time they try to leave it, they are returned to it"
Surah Al-Hajj, 22
the burning of the skins and the desire to leave are repeated: they are acts. If the husband says to his wife "each time you enter the house, you are divorced", she enters: she is divorced; she enters again: she is divorced; she enters again: she is divorced; and there is nothing beyond three divorces in the Law: nothing occurs beyond them (Bada'i' al-Sana'i', 3/21; al-Hidaya, 1/251; Tabyin al-Haqa'iq, 2/233; al-Jawhara al-Nayyira, 4/429-432; al-'Inaya, 5/346-347; Durrar al-Hukam, 4/280).
The Shafi'is say: the instruments of suspension by condition and by attributes are many, among them "if", which is the mother of the chapter, as in "if you enter the house, you are divorced"; "who" (man), as in "whichever of my wives enters the house is divorced"; "when"; "whenever (mata)", "at whatever time", with the addition of "ma"; "each time" (kullama), as in "each time one of my wives enters the house she is divorced"; "at whatever moment", as in "at whatever moment you enter the house, you are divorced". There are also "since", "whatever" in the sense of the conditional "whatever"; "whatever it be" (ayyan ma); "when" (ayyana) which generalizes the times like "mata"; "where" and "wherever" which generalize the places; "how" and "however" for suspension on states. These instruments require neither immediacy nor delay in the conditioned when the suspension is on an existent such as entering, outside the khul'; in the khul' they convey immediacy in some of its forms, such as "if" and "when": "if you guarantee me a thousand, you are divorced", or "when you guarantee me a thousand, you are divorced"; they convey immediacy likewise in suspension on the wish, as in "you are divorced if you wish", or "when you wish", for it is a transfer of ownership according to the correct view, unlike "whenever you wish". These instruments likewise do not require repetition in the conditioned: when it occurs once, without forgetfulness or coercion, the oath is released and its occurring a second time has no effect, except "each time": suspension by it conveys repetition (al-Hawi al-Kabir, 10/208-209; al-Muhadhdhab, 2/88; al-Najm al-Wahhaj, 7/561-562; al-Iqna', 2/445-446; Mughni al-Muhtaj, 4/510-511; Tuhfat al-Muhtaj, 9/497-499; al-Dibaj, 3/453-454).
The Hanbalis say: the instruments of condition used in divorce and manumission are six: "if", "who", "when", "whenever (mata)", "at whatever time" and "each time" (kullama); none requires repetition except "each time". If he says "if you stand", or "when you stand", or "whenever (mata) you stand", or "at whatever time you stand", or "whichever of you stands is divorced", and she stands, she is divorced; even if the standing repeats, the divorce does not repeat, the wording not requiring repetition. If he says "each time you stand, you are divorced" and she stands, she is divorced; if the standing repeats, the divorce repeats, the wording requiring repetition. Abu Bakr said of "at whatever time" that it requires repetition, since it is used for it; the correct view is that it does not, for it is a noun of time resembling "when".
All these instruments entail delay when they are free of the particle of negation (lam): if he joins it to them, "if" remains with delay; "when" has two views: immediacy, for it is a noun of time resembling "whenever (mata)"; or delay, for it was devoted to the condition and has the meaning of "if". And if it bears both, the divorce does not occur in doubt. The other instruments entail immediacy, for they demand it. If he says "if I do not divorce you, you are divorced" without intending a specified time and no indication determines it, the divorce occurs only as the term draws near, namely the end of a portion of the life of one of them. If he says "whenever (mata) I do not divorce you, you are divorced", or "at whatever time I do not divorce you, you are divorced", or "whichever of you I do not divorce is divorced", and a time enabling her divorce passes without his divorcing her, she is divorced. If he says "when I have not divorced you, you are divorced", does she become divorced at once or at the end of the life of one of them? Two views. If he says "each time I do not divorce you, you are divorced" and a time enabling three divorces passes without his divorcing her, she is divorced three times, for the meaning is "each time I keep silent about divorcing you, you are divorced": he kept silent three times in three periods. The speech of the Malikis does not go beyond that of the other schools (al-Mughni, 7/242-243; al-Kafi, 3/190-191; al-Muharrar fi-l-Fiqh, 2/63; al-Mubdi', 7/237-238; al-Insaf, 9/62; Kashshaf al-Qina, 5/328, 330; Matalib Uli al-Nuha, 5/401).
If a man says to his wife "you are divorced if you do such a thing", or "if you enter the house", the outcome depends on the state in which she performs the act sworn upon.
The hadm of divorce is a known question in jurisprudence: does the second marriage erase the repudiations of the first? The subject presents itself in three forms.
First form: a man divorces his wife three times, she marries another husband, the second divorces her and she returns to the first: she returns to him with three divorces, by consensus. Imam Ibn al-Mundhir, may Allah have mercy on him, said: the scholars agree that if a free man divorces his free wife three times, her waiting period expires, she marries a husband who consummates the marriage then parts from her, her waiting period expires, then the first marries her, she is with him upon three divorces (al-Ijma', p. 413; al-Ishraf, 5/242).
Ibn Qudama, may Allah have mercy on him, said: question: if he divorces his wife fewer than three times, she completes the waiting period, marries another who consummates the marriage, then divorces her or dies, her waiting period expires and the first marries her, she is with him with what remains of the three.
Second form: the husband divorced her fewer than three times and she returns to him, before or after the marriage of another husband who did not consummate: she returns with what remains of her divorces, without disagreement among the scholars. Al-Mawardi, may Allah have mercy on him, said: if he marries her before or after a husband without consummating until he divorces her, when the first marries her she is with him with what remains of the divorce by consensus: if he had divorced her once, she remains with him with two; if he had divorced her twice, with one (al-Hawi al-Kabir, 10/286). Ibn al-Qayyim, may Allah have mercy on him, said: if the second did not consummate with her, she remains with what remains of her divorces according to all; al-Nakha'i said: I have heard of no disagreement on this (Zad al-Ma'ad, 5/280). Al-Damiri said: if he renews his marriage before she marries another, or she marries another without consummation, she returns by consensus with what remains (al-Najm al-Wahhaj, 7/514). Ibn Qudama said: if he divorces her fewer than three times and she returns to him by taking back or a new marriage before a second husband, she returns with what remains of her divorces, without any disagreement we know of (al-Mughni, 7/388). Al-Zarkashi said: if he had divorced her fewer than three times and she returns before the marriage of another husband, she returns with what remains of her divorces, without disagreement (Sharh al-Zarkashi, 2/484).
Third form: he divorced her once or twice, she marries another husband who consummates, the second divorces her, she returns to the first and he marries her after the marriage of another husband: this is the question called hadm. The scholars differ on it in two views.
First view: that of the Malikis, the Shafi'is, the Hanbalis according to the school, Muhammad ibn al-Hasan and Zufar among the Hanafis: she returns with what remains of her divorces, the second husband's consummation not erasing what remains of the first husband's divorces. If he had divorced her once then she marries another who divorces her and she returns to the first, she returns with two; if he had divorced her twice, with one; the existence of the second husband equals his absence, and he does not raise what preceded of the first husband's divorces; when the first marries her afterwards, she is with him with what remains: one prior divorce leaves two, two divorces leave one. If he divorces her once in the second marriage, she becomes forbidden to him until she marries another husband: this is the view of the greatest Companions: Omar, Ali, Ubayy, Mu'adh, Imran ibn Husayn, Abu Hurayra, Zayd and Abdallah ibn Amr, may Allah be pleased with them.
The reports supporting them: Omar, an authentic report related by Malik in al-Muwatta (2/586, no. 1219), by Abd al-Razzaq in al-Musannaf (6/351, no. 11149) and by Ibn Abi Shayba in al-Musannaf (5/101, no. 18688). Ali, a weak report related by Abd al-Razzaq (6/352, no. 11154), Ibn Abi Shayba (5/101, no. 18693) and al-Bayhaqi in al-Kubra (7/365), its chain including Hakam ibn Utba and Ibn Abi Layla, both narrating from Mazyada, about whom Ahmad said "known", Abu Zur'a "worthless", and whose father Jabir is unknown; he is mentioned by al-Bukhari in al-Tarikh al-Kabir (2/211), Ibn Abi Hatim in al-Jarh wa-l-Ta'dil (2/494) and Ibn Hibban in al-Thiqat (4/103), who were silent about him. Ubayy, an authentic report related by al-Bayhaqi in al-Kubra (7/365) and by other paths, some of whose chains contain a criticism. Mu'adh, a weak report related by Ibn Abi Shayba (al-Musannaf, 5/101, no. 18691). Imran ibn Husayn, an authentic report related by Abd al-Razzaq (6/353, no. 11158), Ibn Abi Shayba (5/101, no. 18690) and al-Bayhaqi (al-Kubra, 7/365). Abu Hurayra, an authentic report, preceded in the report of Omar ibn al-Khattab. Zayd, a weak report related by Ibn Abi Shayba (5/101, no. 18695), its chain including Hajjaj, weak and a concealer, who narrates the traditions of Muhammad ibn Ubayd Allah al-Arzami, an abandoned narrator.
Imam Malik related in al-Muwatta from Ibn Shihab that he said: I heard Sa'id ibn al-Musayyib, Humayd ibn Abd al-Rahman ibn Awf, Ubayd Allah ibn Abd Allah ibn Utba ibn Mas'ud and Sulayman ibn Yasar all saying: I heard Abu Hurayra say: I heard Omar ibn al-Khattab say: "Any woman whom her husband divorces once or twice, whom he leaves until she becomes lawful again, who marries another husband who dies leaving her or divorces her, and whom her first husband then marries: she is with him with what remains of her divorces." Malik said: "Such is the sunna with us, concerning which there is no disagreement."
Their argument: the first state of lawfulness does not cease except through three divorces. If he divorced her once or twice, she is not forbidden to him and he may take her back; if she marries another who consummates and then returns to him, she returns into the first state of lawfulness, and he holds over her only what remains of the divorces attached to that state. Allah the Most High said:
"the divorce takes place twice"
Surah Al-Baqara, 229
up to His word:
"if he divorces her, she shall not be lawful to him after that, until she marries another husband"
Surah Al-Baqara, 230
He forbade access to the thrice-divorced woman without distinction between the case where the second husband's consummation was interposed between the three and the case where it was not. Yet she is divorced three times in the proper sense: the divorce preceded by two actual divorces is the third; she therefore falls under the text. Moreover the second husband was instituted by the Law as ending the prohibition, "until" being a particle of limit; and the limit of the prohibition is not conceived before the prohibition exists, and the prohibition is not established before the three divorces: the second husband is therefore not a terminus of the prohibition and must be referred to non-existence. Allah announced that the third divorce forbids return except after a husband, without distinguishing whether a husband's consummation was interposed or not. Every consummation that was not a condition of lawfulness does not erase the marriage nor change its ruling, whose origin is consummation by ownership of the right hand; she separated before the ownership's divorces were exhausted: when she returns, she therefore returns with what remains. Every husband who was not a condition of the divorced woman's return to the one who divorced her is equal in existence and absence in that ruling, whose origin is the second husband after the third divorce. He divorced her before completing the number: the ruling is therefore built upon what preceded of the divorces, whose origin is the case where the second did not consummate. Lawful intercourse occurring after the separation of a woman freed from a marriage does not restore her to the beginning of the waiting period as the taking back does, for it is a divorce completing the number of three: the prohibition is therefore required except after a husband, whose origin is the case where he completes the three at the outset. The second husband's consummation does not erase the three divorces; it lifts their prohibition for two reasons: the divorce has occurred and does not cease after occurring; and if it ceased, it would make her lawful without a contract, whereas consummation has an effect on lifting the prohibition only in the three, where alone the prohibition exists. Moreover we are agreed that the second marriage is built upon the first in the oath of continence and ila', before and after a husband: the same applies to the number of divorces (al-Muwatta, 2/586; al-Mudawwana al-Kubra, 5/21; al-Istidhkar, 6/199-200; al-Ishraf 'ala nakt masail al-khilaf, 3/446, no. 1263; Tafsir al-Qurtubi, 3/152-153; Sharh al-Zarqani, 3/278-279; al-Umm, 5/250; al-Mabsut, 6/95-96; Bada'i' al-Sana'i', 3/127-128; Sharh al-Sunna of al-Baghawi, 9/234; al-Hawi al-Kabir, 10/286; al-Najm al-Wahhaj, 7/514; Mughni al-Muhtaj, 4/477; al-Dibaj, 3/423-424; al-Mughni, 7/388-389; al-Kafi, 3/237; al-Sharih al-Kabir, 8/480-481; Sharh al-Zarkashi, 4/484; al-Mubdi', 7/396-397; al-Insaf, 9/159; Kashshaf al-Qina, 5/399-400; Matalib Uli al-Nuha, 5/481; Manar al-Sabil, 3/123-124).
Second view: that of Imam Abu Hanifa, Abu Yusuf and the Hanbalis in one transmission: she returns to him with three divorces, the second husband erasing the repudiations of the first; this is the view of Ibn Umar, an authentic report related by Abd al-Razzaq in al-Musannaf (6/354, no. 11166) and al-Bayhaqi in al-Kubra (7/365), and of Ibn Abbas, an authentic report related by Abd al-Razzaq (6/354, no. 11165), Sa'id ibn Mansur in his Sunan (1/208, no. 1533) and al-Bayhaqi (al-Kubra, 7/365), as well as of 'Ata', al-Nakha'i and Shurayh, and the view of the companions of Ibn Mas'ud: Ibrahim related that the companions of Abd Allah used to say that the husband erases one and two divorces as he erases the three, except Ubayda who said she returns with what remains. If the second marriage erases the three divorces, it erases all the more what is short of them: after the second husband's consummation there is a new state of lawfulness, its divorce and the expiry of its waiting period constituting a new lawfulness that does not cease except through three divorces, as at the beginning of the marriage. The proof that it is a new lawfulness: the first state has ceased in reality, being an accident whose permanence is inconceivable; but if no prohibition is interposed between the two states, it is treated as permanent by the renewal of its likes, forming as it were a single thing, having ceased in reality and in reckoning: the second is therefore a new lawfulness that does not cease except through three divorces, as at the beginning of the marriage. The second husband's consummation erases the three divorces, all the more what is short of them, being a cause of lawfulness. Consummation through a valid marriage assimilates the divorced woman to the stranger in the ruling specific to divorce, as after the three divorces: after the three she becomes forbidden and divorced, and through the second husband's consummation both descriptions are raised and she joins the stranger he never married; with a single divorce she becomes described as divorced, and that description is raised through the second husband's consummation. The proof that the second husband lifts the prohibition without ending it: what ends is affirmed in itself, and after the second husband's consummation there is no prohibition: he is therefore a lifter of the prohibition. He is moreover a cause of lawfulness: the bearer of the Law called him "the one who makes lawful" when he said:
"Allah has cursed the one who makes lawful and the one for whom lawfulness is made"Related by Bukhari and Muslim
He is "the one who makes lawful" only because he causes lawfulness, of which the lifting of the prohibition is necessarily part: thus it is clear that making him a terminus is a metaphor. The rulings of divorce are established as permanent, not toward a terminus, but they are raised by the existence of what raises them, like the ruling of the cessation of ownership, which is not established temporarily but raised by the existence of what raises it, namely marriage. The second husband being established as a cause of lawfulness, he causes a lawfulness that is raised only by three divorces, which do not exist after one or two: those divorces are therefore established upon it. And just as he lifts the prohibition when interposed after its establishment, he lifts it all the more when interposed at its establishment, and prevents its establishment all the more when joined to its pillars (al-Mabsut, 6/95-96; Bada'i' al-Sana'i', 3/127-128; Sharh al-Sunna of al-Baghawi, 9/234; al-Mughni, 7/388-389; al-Kafi, 3/237; al-Sharih al-Kabir, 8/480-481; Sharh al-Zarkashi, 4/484; al-Mubdi', 7/396-397; al-Insaf, 9/159; Kashshaf al-Qina, 5/399-400; Matalib Uli al-Nuha, 5/481; Manar al-Sabil, 3/123-124).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: they differed concerning the man who divorces his wife once or twice, she marries another and returns to her first husband. A group said: she is with what remains of her divorces: thus Omar ibn al-Khattab, Ali ibn Abi Talib, Ubayy ibn Ka'b, Imran ibn Husayn and Abu Hurayra; it was related from Zayd ibn Aslam, Mu'adh ibn Jabal, Abd Allah ibn Amr ibn al-As, Ubayda al-Salmani, Sa'id ibn al-Musayyib and Hasan al-Basri; Malik ibn Anas, Sufyan al-Thawri and Ibn Abi Layla held it; it was related from al-Awza'i, Rabia, Ibn Abi Dhi'b and Ubayd Allah ibn al-Hasan. The same holds for al-Shafi'i, Ahmad ibn Hanbal, Abu Ubayd, Abu Thawr, Ibn Nasr and Muhammad ibn al-Hasan. Second view: it is a new marriage and a new divorce: this is the view of Ibn Umar and Ibn Abbas, and 'Ata ibn Abi Rabah, al-Nakha'i, Shurayh, al-Nu'man and Ya'qub followed it.
Some partisans of the first view argued from their agreement that if the first husband marries her before she marries another, she is with him with what remains of her divorces, needing no husband to become lawful to him: having agreed on that state and then differed when she married, one cannot pass from the agreed state to another state without proof. They agree that if the first had divorced her three times, she would be forbidden to him except after a husband: yet her situation in this question differs from that in the first question, the later husband having here a meaning; the two meanings being distinct, the two rulings must be distinguished: her ruling in the case where she needs a husband to become lawful to the first differs from her ruling in the case where she needs no husband for him. Abu Bakr said: the same applies to the other causes mentioned by this group; it is the view of the most eminent Companions of the Messenger of Allah, peace and blessings of Allah be upon him, among the rightly guided caliphs and others, and most scholars follow it. There is in this question a third view, that of al-Nakha'i: if the latter consummated, it is a new divorce and a new marriage; otherwise, she returns with what remains (al-Awsat, 9/282-284; al-Ishraf, 5/242-243).
The jurists of the four schools agree that if a husband suspends the divorce of his wife on two conditions, the divorce does not occur before both conditions exist together: as in "if you speak to Zayd and Amr, you are divorced", if she speaks to one of them the divorce does not occur according to all; likewise "if you speak to Zayd, if you enter the house, you are divorced": she is divorced only by both together. If she enters the house first, the divorce remains suspended on her speaking to Zayd; if she speaks to Zayd first, it remains suspended on entering the house: the breach occurs only through their sum. Ibn Qudama, may Allah have mercy on him, said: if he suspends the divorce on two conditions, it does not occur before their existence together according to the generality of the scholars. The qadi nonetheless related a view that it occurs through the existence of one, relying on one of the two transmissions concerning the one who swears not to do something and then does part of it. This view is very far off: it contradicts the principles, the requirement of the language, custom and the generality of the scholars, who do not differ on questions involving two conditions; and when the scholars agree that the divorce does not occur through failure of order in two ordered conditions, as in "if you eat then dress", all the more through failure of the condition as a whole. It would further follow, from "if you give me two dirhams you are divorced, and when two months pass you are divorced", about which none differ that she is divorced only with both together, that his words would require the divorce to fall through giving a single dirham and the passage of a single day; the principles of the Law attest that a ruling suspended on two conditions is established only through both. Ahmad moreover stated it textually: if he says "if you have a menstruation, you are divorced", or "if you fast a day, you are divorced", she is not divorced until a complete menstruation has occurred, and when the sun disappears on the day she fasts, she is divorced. As for the oath, as soon as its wording or intent comprises the whole of what is sworn, there is breach only through doing all of it; in our question, suspending the divorce on the two conditions together is explicit, the ruling not being established without its condition. The oath moreover requires the prohibition of what is sworn, hence the prohibition of the whole act: the Lawgiver's prohibition of a thing requires the prohibition of every part of it as of its whole; what is suspended on a condition is made a recompense and ruling, the recompense does not exist without its condition, and the ruling does not come about before its condition is complete in language, custom and Law (al-Mughni, 7/346).
The Hanafis say: if the divorce is suspended on two conditions, the existence of the marriage is required at the realization of the second: if a man says "if you speak to Zayd and Amr, you are divorced three times", then divorces her once, her waiting period expires, she speaks to Zayd, then he marries her and she speaks to Amr: she is divorced three times, contrary to Zufar. The question has four aspects: if both conditions occur during the marriage, what remains of the three occurs by consensus; if they occur outside the marriage, nothing occurs by consensus, for lack of a locus, the recompense not falling outside ownership; if the first occurs within the marriage and the second outside, nothing occurs by consensus, the recompense, namely the divorce, not occurring outside ownership; if the first occurs outside the marriage and the second within, she is divorced, contrary to Zufar. Burhan al-Din Ibn Maza, may Allah have mercy on him, said: if the divorce is suspended on two conditions, and the first is realized while she is in his marriage and the second while she is neither in his marriage nor in her waiting period (his divorcing her once after the first was realized, her waiting period expiring, then the second being realized), the divorce does not occur; and if the first occurs outside his ownership and waiting period and the second within his ownership (his marrying her after the first was realized, then the second being realized), the divorce occurs. Example of the first case: he says "if you speak to Zayd and Amr, you are divorced", she speaks to one of them, then the husband divorces her once, her waiting period expires, then she speaks to the other: the divorce does not occur. Example of the second: he says "if you speak to Zayd and Amr, you are divorced", he divorces her once, her waiting period expires, she speaks to one of them, then he marries her, then she speaks to the other: the divorce occurs in our view, contrary to Zufar, who holds that the existence of ownership at the time of the condition's realization is a condition of the divorce's occurrence, the condition here being their speech, hence the existence of ownership at the time of both speeches is considered; we say that the existence of the whole at the time of the condition's realization is considered only for the lapse of the recompense, not for the existence of the condition itself; the time of the recompense's lapse being that of the second condition's realization, the existence of ownership is considered then. Likewise, if the divorce is suspended on a single condition, part of which is realized within his ownership or waiting period and the rest outside: if the beginning of the condition occurs within his ownership and the end outside, the divorce does not occur; if the beginning occurs outside his ownership and the end within, the divorce occurs. Example: he says to his wife "if you eat this loaf, you are divorced", he divorces her, her waiting period expires, she eats part of it, then he marries her and she eats the rest: she is divorced in our view; if she had eaten part of it within his marriage then he divorced her and her waiting period expired and she ate the rest, she is not divorced (al-Muhit al-Burhani, 3/739-740; Dastur al-Ulama, 2/152).
The Malikis say: if he says to his wife "if you enter this house you are divorced if you speak to Zayd", or "you are divorced if you enter the house if you speak to Zayd", or "if you enter this house if you speak to Zayd, you are divorced", she is divorced only by both together: this is called the suspension of the suspension; if she enters the house first, the divorce remains suspended on her speaking to Zayd; if she speaks to Zayd first, on entering the house; and nothing occurs except through their sum, with no difference between performing the two conditions in the order of the wording or in the reverse order (Sharh Mukhtasar Khalil, 4/67; al-Sharih al-Kabir with al-Dasuqi's gloss, 3/308; al-Sawi's gloss on al-Sharh al-Saghir, 5/392).
The Shafi'is say: if the husband says "if you speak to Zayd, if you enter the house, you are divorced", this is called the interposition of a condition within a condition, and three opinions present themselves. The most correct, and this is the established text, requires the ordering and the inversion: if he says "if you eat, if you drink, you are divorced", she is not divorced until her drinking precedes her eating, the second condition being the qualification of the first: precedence is therefore required, and precedence means non-posteriority. Second opinion: the reverse. Third: only the existence of both conditions is required, whatever their order (al-Hawi al-Kabir, 10/226; al-Najm al-Wahhaj, 7/567; Mughni al-Muhtaj, 4/515-516).
The jurists of the four schools agree that if a husband suspends the divorce of his wife on her wish by saying "you are divorced if you wish", and she says "I wish", she is divorced: he suspended the divorce on her wish and she fulfilled the condition; if she does not wish, she is not divorced. The jurists nevertheless differed: is it specific to the session, with immediacy required, or with delay? According to a distinction.
The Hanafis and the Shafi'is require immediacy within the session when the wording is "if": if he says "you are divorced if you wish" and the session breaks up and she then says "I have wished", the divorce does not occur; this is a transmission among the Malikis and the Hanbalis. But if the wording is "whenever you wish", it holds indefinitely until she chooses; likewise with "when" among the Hanafis.
The Hanafis say: "you are divorced if you wish" applies to the session: if she wishes in that place, she is divorced; if she rises from the place, sleeps or occupies herself with something else, there is no wish after that. "You are divorced when you wish", or "whenever you wish": it holds indefinitely. If he says to her "you are divorced when you wish", or "at whatever time you wish", or "whenever you wish", and she returns the matter, it is not a return and she is not restricted to the session. "Whenever" (mata) and "at whatever time" concern time, general over all times, as if he said "at whatever moment you wish": she is not restricted to the session by consensus; if she returns the matter, it is not a return, for he granted her the divorce as ownership at whatever time she wishes: it was therefore not a transfer of ownership before the wish that could be returned by a return; and she may divorce herself only once, for the word generalizes times and not acts: she holds the divorce in every time but does not hold one divorce after another. "When" (idha) and "as soon as" (idha ma) are like "mata" though used for condition as for time; but the matter is in her hand and is not withdrawn by doubt. If he says to her "you are divorced each time you wish", she may divorce herself once after another until she divorces herself three times: "each time" requires the repetition of acts; yet the suspension refers to the ownership in being: even if she returns to him after another husband and divorces herself, nothing occurs, it is a new ownership; and she cannot divorce herself three times with a single word, which requires the generality of the single act and not of the sum: she does not hold the utterance in block and aggregate. If he says to her "you are divorced where you wish", or "at whatever place you wish", she is not divorced so long as she does not wish it, and if she rises from her session there is no wish: "where" and "at what place" are nouns of place, and the divorce cannot be suspended on place: the word becomes idle and the mention of the bare wish remains, restricted to the session, unlike time, which can be attached to it, so that she divorces in one time rather than another: its generality or restriction must therefore be considered (Mukhtasar Ikhtilaf al-Ulama, 2/446; Fatawa al-Saghdi, 1/359; Tuhfat al-Fuqaha, 2/191; al-Muhit al-Burhani, 3/510; Bada'i' al-Sana'i', 3/121-125; al-Hidaya, 1/249-250; Durrar al-Hukam, 4/276).
The Shafi'is say: if the husband suspends the divorce on his wife's wish while addressing her, as in "you are divorced if you wish", or "when you wish", her wish is required by the wording at once, this implying the granting of the divorce to her as ownership, as in "divorce yourself", her word being the expression of her choice: her immediate answer is like acceptance in contracts, and immediacy designates the session of the contract. It is said: if she wishes within the session, she is divorced, the session of the contract standing in its place as in taking possession and the salam. It is said: at whatever time she wishes she is divorced, with no restriction of time, as in "if you enter the house, you are divorced". This if the wording is "if" or "when"; but if he says "whenever you wish", immediacy is not required. If, however, he suspends the divorce on her wish without addressing her, as in "my wife is divorced if she wishes", the wish is not required at once according to the soundest view, whether she is present or absent. Likewise if he suspended it on a stranger's wish while addressing him: "if you wish, my wife is divorced": immediacy is not required according to the soundest view, the transfer of ownership being implausible in the first case and absent in the second. The opposite view requires it, in consideration of the implication of the grant in the first and of the address in the second. If he suspended it on a stranger's wish without address, as in "if Zayd wishes", immediacy is categorically not required; and if he suspended it both on his wife's wish by address and on Zayd's, immediacy is required for the wife's wish only, giving each its own ruling as if alone. If the bearer of the suspension, wife or stranger, says "I wish" reluctantly in his heart, the divorce occurs outwardly and inwardly, the condition being the word of wish which exists. It is said: it does not occur inwardly, for lack of a real wish. If the bearer of the wish says "I wish if you wish", she is not divorced even if the husband wishes: the suspension bears on the wish of the one mentioned, which did not occur; only the suspension of her wish occurred, and the wish is an information about the aspiration in the soul, which cannot bear a condition. There is likewise no divorce suspended on the wish of a boy and a girl, even if discerning: their wish has no effect in dispositions, as if he said to a little girl "divorce yourself" and she divorced: nothing occurs; the same applies if the divorce is suspended on her wish. It is said: divorce suspended on the wish of a discerning child occurs, his wish being considered in the choice between his two parents. And the one who suspended the divorce on another's wish cannot retract before that wish has occurred (al-Hawi al-Kabir, 10/145; al-Muhadhdhab, 2/97; al-Najm al-Wahhaj, 7/576-578; Mughni al-Muhtaj, 4/524-525; Tuhfat al-Muhtaj, 9/538-539; al-Dibaj, 3/466-467).
The Malikis according to the famous view: if the husband says to his wife "you are divorced if you wish", it is a transfer of ownership: he cannot retract it, and the two are separated until she answers, without his being given delay, her being kept from approaching until she answers with what requires a return or a taking, unlike the empowered agent whose matter is in her hand without having been withdrawn from her: he may therefore retract her and have access to her.
It is related in al-Mudawwana al-Kubra: (I say) what do you think of a man who says to his wife "you are divorced when you wish"? (He answered:) Malik said: the wish belongs to her even if she leaves her session, until she is held, that she decide or abstain; if she abstains and he has intercourse with her before she is held or decides, nothing belongs to her and what was in her hand is annulled. Ibn al-Qasim said: I told you this only for the man who says to his wife "you are divorced if you wish": it is in her hand until she is held, even if they part from their session; for Malik abandoned his first statement on the transfer of ownership and said it is in her hand until she is held, which is more obscure than the transfer of ownership. Malik used at one time to say, concerning the man who says to his slave "you are free when my father arrives" or "you are free if my father arrives", that they are distinct, his words "when my father arrives" being stronger in his eyes than "if my father arrives"; then he returned to saying they are equivalent, "when" like "if"; on that basis, "when you wish you are divorced" and "if you wish you are divorced" follow "when my father arrives you are free" and "if my father arrives you are free". (I say:) if she accepts it, does that annul what he granted her? (He answered:) yes, and that is my view which I did not hear from Malik. (It is also said in the Mudawwana:) (I say) what do you think if he says to her "you are divorced if you wish", or "choose", or "your affair is in your hand": does it remain hers, according to Malik, if she leaves her session? (He answered:) Malik used at one time to say it belongs to her as long as she is in her session, and that if they part there is nothing for her. Malik was asked: what if a man says to his wife "your affair is in your hand" then leaps up and flees, intending thereby to cut off what he granted her as ownership? (He answered:) he does not cut off what he granted her. He was asked: what is its limit according to you? He said: if he sits with her for the time people see her choosing in such a case, and his parting from her is not intended as flight but he rises as one rises for one of his needs, the woman has no choice after that. Such was his first view; then he returned to saying: it appears to me to be in her hand until she is held. Malik was asked: does it seem to you like that of the one who says "I have accepted", then they part and she does not decide? (He answered:) yes: it is in her hand whether she said "I have accepted" in her session or did not say it, until she is held or he consummates before she decides, and after that nothing belongs to her; and his word "choose" grants her like his word "your affair is in your hand". Malik likewise said of the choice and "your affair is in your hand" that what he grants of it to the woman is the same, his first statement pleasing him more: if they part, there is nothing for her, and this is the view of a group of people. Ibn al-Qasim said: when the man says to his wife "you are divorced if you wish", it is in her hand even if she leaves her session, and I heard nothing from Malik on it, except that she keep him from herself before she decides; I see that she be held: she either decides, or what was in her hand is annulled; for when he said to her "you are divorced if you wish", it is as a delegation he entrusted to her. (I say:) until when may the woman decide, according to Malik, when the man gives her the choice? (He answered:) she may decide as I told you for the transfer of ownership, until they part: if they part, there is nothing for her (al-Mudawwana al-Kubra, 5/2-3 and 5/377-378; see also Sharh Mukhtasar Khalil, 4/70; al-Fawahid al-Dawwani, 2/45).
The Hanbalis according to the school: if the husband says to his wife "you are divorced if you wish", or "when you wish", or "whenever you wish", or "how you wish", or "where you wish", or "in whatever way you wish", she is not divorced until she has wished and pronounced the wish with her tongue, saying "I have wished": what is in the heart is known only through the tongue, the ruling therefore attaching to what she utters and not to what is in the heart; if she wishes in her heart without uttering, there is no divorce; if she says "I have wished" reluctantly, the divorce occurs, the pronunciation being decisive. The same applies if the divorce is suspended on another's wish: as soon as the wish occurs through the tongue, the divorce occurs, in immediacy as in delay; Ahmad stated it textually for suspending the divorce on a stranger's wish, as well as for "you are divorced where you wish" or "in whatever way you wish": he referred the divorce to her wish, as in "where you wish"; it is moreover a suspension of the divorce on a condition, hence with delay like every suspension, and a removal of ownership suspended on a wish, hence with delay like manumission. If the bearer of the wish dies or goes mad, the divorce does not occur, the condition not having been fulfilled; it was related from Abu Bakr that it occurs, but this report is not sound, for divorce suspended on a condition does not occur when its condition becomes impossible, as in "you are divorced if you enter the house". If he wishes while mad, there is no divorce: his speech carries no ruling; if he wishes while drunk, the correct view is that it does not occur, his intellect being suspended, like the madman; if he wishes while a child, no divorce, for he is like the madman; if he understands the divorce, it occurs, the wish belonging to him; hence his choice between his two parents is valid; if he is mute and wishes by gesture, the divorce occurs, his gesture standing in place of speech. If he restricted the wish to a time, saying "you are divorced if you wish today", it is bound by it: if the day passes without her wish, she is not divorced. If he suspended the divorce on the wish of two persons, it does not occur without both wishes occurring. Ibn Qudama, may Allah have mercy on him, said: if he says "you are divorced if you wish" and she says "I have wished if you wish", then he says "I have wished", or she says "I have wished if the sun rises", the divorce does not occur: Ahmad stated this meaning textually, and it is the view of the rest of the scholars, among them al-Shafi'i, Ishaq, Abu Thawr and the partisans of reasoned opinion. Ibn al-Mundhir said: all those whose reports we preserve among the scholars agree that if a man says to his wife "you are divorced if you wish" and she says "I have wished if so-and-so wishes", she has returned the matter and the divorce does not fall upon her even if so-and-so wishes (al-Ijma', p. 417; al-Ishraf, 5/248): no wish occurred from her, only the suspension of her wish on a condition occurred, and the suspension of the wish is not a wish. If he suspended the divorce on the wish of two persons and one wishes at once and the other later, the divorce occurs, both wishes having occurred from them together (al-Mughni, 7/355-356; al-Kafi, 3/208-209; al-Mubdi', 7/360-361; al-Insaf, 8/101).
The detail of the delegation according to each school will come in the following chapter.
Delegation (tafwid) includes within it the types of choice (takhyir), transfer of ownership (tamlik) and agency (tawkil). The jurists of the four schools allow the husband to delegate his wife's divorce to her or to another, according to the report of Abu Salama ibn Abd al-Rahman:
Aisha, wife of the Prophet (peace and blessings of Allah be upon him), said: when the Messenger of Allah was commanded to give his wives the choice, he began with me and said: "I am going to mention to you a matter: do not hasten until you have consulted your parents." She said: yet he knew that my parents would not order me to part from him. Then he said: "Allah, exalted be His praise, has said: 'O Prophet! Say to your wives: if you desire the life of this world and its adornment, come, I will provide for you and release you in a gracious manner; and if you desire Allah and His Messenger and the abode of the Hereafter, Allah has prepared for the doers of good among you a tremendous reward.'" She said: I answered: in which of these two shall I consult my parents? I desire Allah and His Messenger and the abode of the Hereafter. She said: the wives of the Prophet then did as I did.Related by Bukhari (4508) and Muslim (1475)
Each school nonetheless has its distinctions. The Hanafis say: delegation of the divorce is of three types: delegation (tafwid), agency (tawkil) and message (risala); the wordings of delegation are three: choice, the matter in hand and the wish. If he says to his wife "choose yourself" intending the divorce, or "divorce yourself", she may divorce herself as long as she is in that session, even if it extends to a day or more, so long as she does not rise from it or take up another occupation; likewise if he himself rises from the session: the matter is in her hand as long as she is in her session, and the husband can neither retract, nor forbid her, nor annul. If she rises from her session or takes up another work before choosing herself, the matter leaves her hand: by rising she becomes distracted, likewise if she occupies herself with work that clearly cuts off what preceded, such as calling for food, sleeping, combing her hair, bathing, dyeing with henna, having relations with her husband, or bargaining with a man over a sale or purchase: all of that annuls her choice. She has the choice as long as she is in her session, if the choice is not limited to a time; if it is, as in "choose yourself today, or this month, or a month, or a year", she may choose as long as the time remains, whether she leaves the session, occupies herself with something else or not; and if he says "choose today", or "your affair is in your hand today or this month", her choice bears on the rest of the day or the month; "a day" runs from the hour of his speech to the same hour the next day. If he says "your affair is in your hand whenever you wish", the matter is in her hand in that session and in others, and she may divorce herself once in each session until she separates through three, "each time" requiring repetition; but she does not divorce herself more than once per session; once the three are exhausted and she marries after a husband, she has no more choice. Intention moreover is required in "choose", which is a metonymy, as in "your affair is in your hand". If he says to her "your affair is in your hand when you wish", or "whenever you wish", or "at whatever time you wish", she may choose once only, in the session or outside it, "when" and "whenever" indicating time, as if he said "choose whatever time you wish": if she chooses within the session, the matter leaves her hand as with "each time". If she chooses herself in "choose yourself", it is a single irrevocable divorce, lawful to him again only through a future marriage, and it never becomes triple even if he intended it. Mention of the self is moreover required in his word or hers: if he says "choose" and she answers "I chose", it is invalid; if she says "I chose myself", or "I chose my thigh", "my mother", "my family", "the wives", all of that indicates the divorce. If she says "I chose myself, no rather my husband", or "I chose myself and my husband", the divorce occurs; if she says "I chose my husband, no rather myself", or "I chose my husband and myself", nothing occurs and the matter leaves her hand; if she says "I choose myself", analogy yields nothing, it being a mere promise, but by preferential reasoning (istihsan) the divorce occurs. If he says to her "divorce yourself" and she says "I divorce myself", nothing occurs, neither by analogy nor by preference. If he says to her "choose" and she answers "I chose myself", or "I declared myself separate", or "I made myself forbidden", or "I divorced myself", it is an answer and the irrevocable divorce occurs through it. If he says to her "divorce yourself" and she answers "I divorced myself", or "I declared myself separate", or "I made myself forbidden", it is an answer and the revocable divorce occurs; "I chose myself" is not an answer. If he says "choose yourself" intending the three and she divorces herself three times or once, it is a single irrevocable, never triple. If he says to her "divorce yourself three times", or intends the three and she divorces herself three times, they occur; if she divorces herself once, it is a single revocable by agreement. If he says to her "divorce yourself once" and she divorces herself three times, nothing occurs according to Abu Hanifa, and according to Abu Yusuf and Muhammad a single one occurs. If he says to her "divorce yourself" without intention, or intending once, and she says "I divorced myself", it is a single revocable: the delegated wording is an explicit divorce; if she divorces herself three times and the husband intended it, they occur; if he intended two, it is valid only for a slave woman, for that is the kind of her right. If he says to her "divorce yourself" and she says "I declared myself separate", she is divorced; if she says "I chose myself", she is not divorced, the declaration being among the words of divorce: does one not see that if he says to her "I declare you separate" intending the divorce, or she says "I declared myself separate" and the husband says "I permit that", she becomes separated; unlike the choice, which is not among the words of divorce: if he says to her "I chose you" or "choose" intending the divorce, nothing occurs. If the woman says from the outset "I chose myself" and the husband says "I permit", nothing occurs: the divorce is only known as an answer to a choice, and "divorce yourself" is not a choice, so the word becomes idle. If he says to her "divorce yourself", he may retract; if she leaves her session it lapses, for it is a transfer of ownership; unlike "divorce yourself of your harm", which is an agency not restricted to the session, where retraction is accepted. If he says to her "divorce yourself whenever you wish", she may divorce herself in the session and after it, "whenever" being general over times, as if he said "at whatever moment you wish"; her wish occurs only once, "when" and "whenever" not requiring repetition: when she wishes, the condition of the divorce exists, she is divorced and no wish remains to her; even if he takes her back and she wishes afterwards, her wish has no effect. If he says to her "divorce yourself" and she says "I divorced myself once, revocably", an irrevocable occurs, the husband's command being decisive. If he says "divorce yourself three times if you wish" and she divorces herself once, nothing occurs, the meaning being "if you wish the three", and she did not wish the three; if he says "divorce yourself once if you wish" and she divorces herself three times, it is the same with Abu Hanifa: nothing occurs, the wish of the three not being a wish for the one, whereas with the other two a single one occurs, the wish of the three being a wish for the one (Tuhfat al-Fuqaha, 2/187, 191; Mukhtasar Ikhtilaf al-Ulama, 2/422-423; Bada'i' al-Sana'i', 3/117-119; al-Hidaya, 1/243; al-Jawhara al-Nayyira, 4/452-464; Ibn Abidin's gloss, 3/314-318; al-Lubab, 2/92-94).
The difference between delegation and agency bears on five rulings: in delegation there is neither retraction nor revocation, it is not annulled by the husband's madness, it is bound to the session and not to the intellect, so that delegating to a madman or a non-discerning child is valid, unlike agency on these five points.
If the husband says to a man: "Go to such a woman and tell her: your husband says to you: choose", the messenger transmits the words of the sender without composing his speech, for the messenger is an expounder and an envoy (Tuhfat al-Fuqaha, 2/187, 191; Mukhtasar Ikhtilaf al-Ulama, 2/422-423; Bada'i' al-Sana'i', 3/117-119; al-Hidaya, 1/243; al-Jawhara al-Nayyira, 4/452-464; Ibn Abidin's gloss, 3/314-318; al-Lubab, 2/92-94).
The Malikis say: representation in divorce is of four types: agency, choice, transfer of ownership and message; the husband may delegate the divorce to his wife or to another through any of these modes. Agency consists in making the composition of the divorce by another such that the husband remains forbidden to pronounce it: he may therefore revoke her or revoke the agent before the pronouncement, by agreement, as any principal may revoke his agent whenever he wishes, the agent acting in representation of his principal, and the principal being able to revoke him before the completion of the matter for which he appointed him, not after, unless a right beyond the agency is attached to it, such as warding off harm: "if I marry over you, your affair, or that of the wife who enters, is in your hand" as an agency: he cannot then revoke her, the right here being the warding of harm from her, a right attached to that agency. Delegation of choice consists in making the composition of the divorce three times, explicit or by ruling, a right for another, to the exclusion of agency: the husband did not make the composition of the divorce a right of the agent, but placed it in his hand in representation. The formulas of choice are: "choose me", or "choose yourself", or "divorce yourself three times", or "choose your affair"; he cannot revoke her in this choice. Transfer of ownership consists in making the composition of the divorce a predominant right for another in the three, restricted to what is short of them; he cannot revoke her. Among its formulas: "your affair", or "your divorce, is in your hand", and any word indicating that the divorce is in her hand without choice, such as "divorce yourself", "I vested your affair in you" or "I charged you with your affair". In sum: any word indicating that the husband delegated to her remaining in the marriage or leaving it is a choice; any word indicating that the divorce is in her hand or in another's without choice is a formula of transfer of ownership. Revocation is possible only in agency, not in choice nor in transfer of ownership: in agency he made her his representative in the composition; in the other two he granted her what he owned, and they are stronger. This is why the two spouses are separated in choice and transfer of ownership as in agency when a right is attached to it: if he says "if I marry over you, your affair, or that of the wife who enters, is in your hand" and he marries, he does not approach her and the two are separated until she answers with what requires a return or a taking; otherwise it would lead to enjoyment in a marriage whose continuance is doubtful, unlike agency where they are not separated, the husband being able to revoke, so that if he enjoyed her it would be a revocation on his part. The separation occurs only if the choice or the transfer of ownership is not suspended on something, such as Zayd's arrival; if he suspended it, there is no separation until the conditioned matter occurs. If he says to his wife "your affair is in your hand for a year", the case is suspended, that is, the judge suspends it.