Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Thirdly (among the categories of divorce): divorce that is neither sunni nor bid'i
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Updated on 25 September 2026 at 3:23 PM
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Ash-Shafi'i reported, from Muslim ibn Khalid, from Ibn Jurayj: 'They sent someone to Nafi' to ask him: was the divorce of Ibn Umar, during the lifetime of the Messenger of Allah, counted? He said: yes' (Musnad ash-Shafi'i, p. 193); it is also reported that this is what Ibn Umar used to issue fatwas upon. As for those who do not hold this divorce effective, they relied on the generality of the word of the Prophet:
'Every deed or act that is not in accordance with our command is rejected.'Reported by Muslim (1718)
They say: the command of the Messenger of Allah to reject it indicates that it is without effect and without taking of effect. In sum, the cause of the disagreement is the following: are the conditions laid down by the Law for the divorce in accordance with the Sunna conditions of validity and execution, or conditions of perfection and completion? Whoever says 'conditions of execution' says: the divorce lacking this attribute does not take effect. Whoever says 'conditions of perfection' says: it takes effect, and it is recommended that it occur complete; that is why whoever affirms the taking effect of the divorce while commanding the taking back contradicts himself: reflect on that (Bidayat al-Mujtahid 2/48-49).
Thirdly, among the categories of divorce: a divorce that is neither sunni nor bid'i. The scholars mentioned that there is a category of women upon whom, when a man pronounces the divorce, it is described neither as sunni nor as bid'i: it is simply lawful. Its exposition is as follows:
The jurists of the four schools explicitly stated, according to the sound position they hold, that for the young girl, the menopausal woman, the unconsummated woman, as well as the pregnant woman on the sound position, the divorce is neither sunni nor bid'i; the same applies to the woman married in a state of ihram (al-mukhala'a) according to the Shafi'is.
Imam Ibn Abd al-Barr, may Allah have mercy on him, said: the scholars agreed that the divorce in accordance with the Sunna concerns only the woman with whom the marriage has been consummated; as for the one with whom it has not, there is in her divorce neither Sunna nor innovation; the command of Allah and the intent of His Messenger in the divorce that opens the waiting period concern the repudiation of the consummated wife; as for the one with whom it has not been consummated, no waiting period is due upon them, and their divorce entails neither Sunna nor innovation. Allah said:
'O you who believe, when you marry believing women and then divorce them before you have touched them, there shall be no waiting period for you to count upon them.'
Surah al-Baqara, 236
And the husband divorces the woman with whom he has not consummated the marriage at any moment he wishes (at-Tamhid 15/72-73). He also said: as for the pregnant woman, there is no disagreement among the scholars: her divorce accords with the Sunna from the beginning of the pregnancy to its end, for her waiting period is the delivery of what she carries in her womb; and it is established from the Prophet, in the hadith of Ibn Umar, that he ordered him to divorce her while pure or pregnant, without distinguishing the beginning of the pregnancy from its end (at-Tamhid 15/80).
The qadi Abd al-Wahhab, may Allah have mercy on him, said: the menopausal woman and the consummated young girl may be divorced at any time he wishes. Zafar said: if he has consummated the marriage with them, he does not divorce them except by separating the intercourse from the divorce by a month. Our proof is the word: 'divorce them for their waiting period', and the word of the Prophet, in the hadith of Ibn Umar: 'let him divorce her while pure without intercourse, or pregnant with her pregnancy established': he permitted the divorce of the pregnant woman on account of the appearance of the pregnancy, which entails that if he consummated the marriage while her pregnancy is apparent, he may divorce her immediately after intercourse with a single repudiation, without separating the pregnant woman from the woman prevented [from menstruation] in this regard. We reason by analogy: because she counts her waiting period after intercourse and it is known, her divorce is permitted in that state like that of the prevented woman; and because it is a separation that affords no safety against a divorce in the purity of intercourse, or does not afford knowledge of the type of waiting period: it is therefore not needed, its origin being what exceeds the month (al-Ishraf 'ala nukat masa'il al-khilaf 3/413-414, no. 1233).
Imam al-Kasani, may Allah have mercy on him, said: as for the pregnant woman whose pregnancy is established, it is preferable to divorce her with a single revocable repudiation, even if he has consummated the marriage and divorces her immediately after intercourse; for what is disliked in the case of women of regular menstruation is the possibility of regret, not the possibility of pregnancy: when he divorces her knowing her pregnancy, there is, apparently, no regret to fear; the same applies to the women counted by months, the menopausal woman and the young girl: it is preferable to divorce them with a single revocable repudiation, even after the purity of intercourse; this is the view of our three companions. Zafar said: the divorce of the menopausal woman and the young girl is separated from intercourse by a month.
His argument is the following: the month, for the menopausal woman and the young girl, stands in the place of the menstruation for the woman who menstruates; then, for the divorce according to the Sunna, one separates intercourse and divorce by a menstruation in the case of the woman who menstruates; likewise they are separated in the case of her who does not menstruate by a month, as the two repudiations are separated. Our proof: what is disliked in the divorce during the purity of intercourse, for women of regular menstruation, is the possibility that she conceive by that intercourse and that he regret; this meaning is absent in the case of the menopausal woman and the young girl, even if intercourse has occurred; and because menopause and minority indicate more clearly the emptiness of the womb than menstruation in the case of women of regular menstruation: when the pronouncement is permitted there after the menstruation, it is more fitting that it be permitted here after intercourse (Bada'i' as-Sana'i' 3/88-89; al-Jawhara an-Nayra 4/390, 397).
Imam al-Mawardi, may Allah have mercy on him, said: the women for whose divorce there exists neither Sunna nor innovation are five: the young girl, the menopausal woman, the pregnant woman, the unconsummated woman, and the woman married in a state of ihram. The young girl and the menopausal woman, because they count their term in months, which vary neither by menstruation nor by purity; the unconsummated woman, because she has no waiting period upon which menstruation or purity would have an effect; the woman married in a state of ihram, because their fear of not upholding the limits of Allah requires hastening the divorce, without regard for Sunna or innovation (al-Hawi al-Kabir 10/115).
Al-'Amrani, may Allah have mercy on him, said: if she is a young girl or menopausal and he wishes to divorce her, it is recommended to divorce her one repudiation each month, for each month stands in place of a period for her. If she is pregnant, some of our companions said: he divorces her one repudiation each month. Abu Ali as-Sanji said: he divorces her once during the pregnancy; then when she is purified of her postpartum bleeding, he divorces her a second time; then when she is purified of the menstruations following the postpartum bleeding, he divorces her a third time. Abu Ali meant: if he took her back before the delivery (al-Bayan 10/80; Mughni al-Muhtaj 4/498).
Imam Ibn Qudama, may Allah have mercy on him, said: Ibn Abd al-Barr said: the scholars agreed that the divorce in accordance with the Sunna concerns only the consummated woman; as for the unconsummated woman, her divorce entails neither Sunna nor innovation, except as regards the number of repudiations, over which they differ. This is because divorce, for the consummated woman among women of regular menstruation, entails Sunna and innovation: the waiting period is lengthened by divorce during menstruation, becomes doubtful by divorce in the purity of intercourse, and both considerations vanish with divorce in the purity without intercourse; as for the unconsummated woman, she has no waiting period that could be lengthened or made doubtful; likewise the women counted by months, such as the young girl who has not yet menstruated and the menopausal woman: their divorce entails neither Sunna nor innovation, for the waiting period is in no way lengthened and there is no pregnancy giving rise to doubt; likewise the pregnant woman whose pregnancy is established. For all these women: their divorce entails neither Sunna nor innovation as regards the timing, according to the view of our companions, which is the madhhab of ash-Shafi'i and of many of the people of knowledge (al-Mughni 7/285-286; al-Mubdi' 7/263).
The jurists differed over the man who contracts marriage with a woman and then divorces her three times before having consummated the marriage: does it count once or three times? Two cases arise:
First case: he says to her 'you are divorced three times' in a single formula, or 'you are divorced, you are divorced, you are divorced' intending the three.
The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, agreed: the man who contracts marriage with a woman without consummating it and then says to her 'you are divorced three times', or 'you are divorced, you are divorced, you are divorced' intending the three, she is divorced three times and does not become lawful to him again until she has married another husband. They relied on the word of Allah:
'Divorce is twice. Then either retain her in kindness or release her with kindness.'
Surah al-Baqara, 229
and on His word:
'If he divorces her, she shall not be lawful to him afterwards until she marries another husband.'
Surah al-Baqara, 230
The Qur'an indicates that whoever divorces his wife, whether he has consummated the marriage or not, three times, she does not become lawful to him again until she has married another husband; when the man says to his unconsummated wife 'you are divorced three times', she therefore becomes forbidden to him until she marries another husband. And the word of Allah:
'The divorced women wait for three periods. And their husbands have the better right to take them back during that period.'
Surah al-Baqara, 228
The Qur'an indicates that the taking back belongs only to the one who divorced once or twice, and only to the woman in her waiting period: Allah established the taking back only during the waiting period, the husband no longer possessing the right of return once it has lapsed, since the woman may then marry a husband other than the divorcer. Whoever divorces his unconsummated wife once or twice therefore has no right of return over her, and she has no waiting period: she may marry whom it is lawful for her, whether virgin or previously married (al-Umm 5/183).
Imam Malik and others reported, from Ibn Shihab, from Muhammad ibn Abd ar-Rahman ibn Thawban, from Muhammad ibn Iyas ibn al-Bukayr: a man divorced his wife three times before consummating the marriage, then considered marrying her; he came to ask for a fatwa, and I went with him to ask on his behalf: he asked Abdallah ibn Abbas and Abu Hurayra, who said: we do not think you should marry her until she has married another husband. He said: but my divorce of her was only one. Ibn Abbas said: 'You have cast away with your own hand the advantage you had.' (Reported by Malik in 'al-Muwatta', 1180)
Malik reported, from Yahya ibn Sa'id, from Bukayr ibn Abdallah ibn al-Ashajj, from an-Nu'man ibn Abi Ayyash al-Ansari, from 'Ata' ibn Yasar: a man came asking Abdallah ibn Amr ibn al-As about a man who had divorced his wife three times before touching her. 'Ata' said: I said: the divorce of the virgin is only one repudiation. Abdallah ibn Amr ibn al-As said to me: 'You are only a young one (qass): one separates her, three make her forbidden until she marries another husband.' (Reported by Malik in 'al-Muwatta', 1181)
From Mu'awiya ibn Abi Ayyash al-Ansari: he was sitting with Abdallah ibn az-Zubayr and 'Asim ibn Umar when Muhammad ibn Iyas ibn al-Bukayr came to them and said: a man of the desert divorced his wife three times before consummating the marriage: what do you both say? Ibn az-Zubayr said: this matter is not within our judgment; go to Abdallah ibn Abbas and Abu Hurayra, may Allah be pleased with them, ask them, then come back and inform us. He went, asked them, and Ibn Abbas said to Abu Hurayra: issue the fatwa, O Abu Hurayra, for a thorny question has come to you, that is, a difficult and embarrassing question. Abu Hurayra said: 'One separates her, three make her forbidden until she marries another husband.' (Reported by at-Tahawi in 'Sharh Ma'ani al-Athar', 3/57)
From Shuqayq: he heard Anas ibn Malik say, regarding the man who divorces his wife three times before consummating the marriage: 'It is three: she does not become lawful for him until she has married another husband; and Umar inflicted a chastisement on whoever was brought to him for that.' (Reported by Sa'id ibn Mansur in his 'Sunan', 1073, 1074)
From al-Hakam, from Ibn Abbas and Ibn Mas'ud, regarding a man who divorced his wife three times before consummating the marriage: 'She does not become lawful for him until she has married another husband.' (Reported by Ibn Abi Shayba in his 'Musannaf', 17852)
From Ali, may Allah be pleased with him: 'When he divorces the virgin once, he has finally dismissed her; and when he divorces her three times, she does not become lawful for him until she has married another husband.' (Reported by Ibn Abi Shayba in his 'Musannaf', 17853)
Muhammad ibn al-Hasan ash-Shaybani, may Allah have mercy on him, said: this is what we hold, and it is the view of Abu Hanifa and the majority of our jurists: for he divorced her three times, and the three therefore took effect together (the Muwatta of Imam Malik according to the narration of Muhammad ibn al-Hasan 2/516).
Imam Badr ad-Din al-Ayni al-Hanafi, may Allah have mercy on him, said: 'When a man divorces his wife three times before consummation, the three repudiations take effect' according to the majority of scholars: it is the madhhab of Umar, Ali, Ibn Abbas, Abu Hurayra, Abdallah ibn Amr ibn al-As, Ibn Mas'ud and Anas ibn Malik, may Allah be pleased with them; and Sa'id ibn al-Musayyib, Muhammad ibn Sirin, 'Ikrima, Ibrahim an-Nakha'i, 'Amir ash-Sha'bi, Sa'id ibn Jubayr, al-Hakam, Ibn Abi Layla, al-Awza'i and Sufyan ath-Thawri said the same. Ibn al-Mundhir said: and I say it. Abu Bakr Ibn Abi Shayba mentioned that it is the view of 'Aisha, Umm Salama, Khalid ibn Muhammad, Makhul and Humayd ibn Abd ar-Rahman. Tawus, Abu ash-Sha'tha' and 'Amr ibn Dinar said: whoever divorces the virgin three times, it counts as one repudiation; and in the 'Musannaf of Ibn Abi Shayba', from Jabir ibn Zayd, Tawus and 'Ata': when the man divorces his wife three times before consummating the marriage, it counts as one repudiation; and in 'al-Mabsut': it is the view of al-Hasan al-Basri (al-Bunaya, Sharh al-Hidaya 5/354).
Imam Ibn Abd al-Barr, may Allah have mercy on him, after mentioning the hadith of Ibn Umar cited previously, said: in this hadith lies the finality of the three combined repudiations, and that the unconsummated woman is like the consummated woman in this; and such is the position of the majority of jurists and scholars in equating the virgin and the non-virgin, the consummated and the unconsummated: three repudiations make her forbidden to her divorcing husband until she marries another husband. It was reported from 'Ata', Tawus and Jabir ibn Zayd that they counted the three repudiations as one for the unconsummated woman; and it was reported from Tawus, from Ibn Abbas, in the hadith of Abu as-Sahba'.
Abdallah ibn Muhammad ibn Abd al-Mu'min informed me: Abu Bakr Muhammad ibn Uthman ibn Thabit informed me: Isma'il ibn Ishaq informed me: Ali ibn al-Madini informed us: Sufyan ibn 'Uyayna informed me, from 'Amr ibn Dinar, from 'Ata' and Abu ash-Sha'tha': 'If he divorces her three times before consummating the marriage, it counts as one repudiation.' Ali said: I said to Sufyan: Ibrahim ibn Nafi' reported, from 'Amr, from Tawus, Jabir ibn Zayd and Sa'id ibn Jubayr: 'it counts as one repudiation'. Sufyan said: I memorized it from 'Amr, Jabir ibn Zayd and 'Ata'. He said: and if Ibrahim reported it from them, he was a memorizer as well.
A group thus deviated from the majority, whose agreement constitutes proof against whoever opposes them, among them Dawud and the Zahiris. They say: only what his scribes, Tawus, Jabir ibn Zayd, 'Ata' and Sa'id ibn Jubayr, reported from him can be authentically attributed to Ibn Abbas, according to the hadith of Abu as-Sahba'.
Abu Umar (Ibn Abd al-Barr) said: among those from whom we report that they held that three repudiations make the unconsummated woman forbidden to her husband, like the consummated one, are Ali ibn Abi Talib, Ibn Mas'ud, Ibn Abbas, Ibn Umar, Abdallah ibn Amr ibn al-As, Abu Sa'id al-Khudri, Jabir ibn Abdallah, Abdallah ibn Mughaffal, Abu Hurayra, 'Aisha and Anas; and it is the view of the group of successors we have mentioned. And the group of scholars of the lands said the same: Ibn Abi Layla, Ibn Shuburma, Sufyan ath-Thawri, al-Hasan ibn Hayy, Malik, Abu Hanifa, ash-Shafi'i and their companions, Ahmad, Ishaq, Abu Thawr and Abu Ubayd at-Tabari (al-Istidhkar 6/109; Sharh az-Zurqani 3/250).
Imam Muhammad ibn Nasr al-Marwazi, may Allah have mercy on him, said: they differed over the unconsummated woman when the husband divorces her three times in a single formula. Al-Awza'i, Malik, the people of Medina, Sufyan, the adherents of rational opinion, ash-Shafi'i and his companions, Ahmad and Abu Ubayd said: she does not become lawful for him until she has married another husband. It was reported from Ibn Abbas and more than one successor that they said: if he divorces her three times before consummating the marriage, it counts as one repudiation; and most of the people of hadith follow the first view. Ishaq said: the final threefold divorce counts as one repudiation; and he interpreted the hadith of Tawus from Ibn Abbas: 'the threefold divorce, during the lifetime of the Messenger of Allah, of Abu Bakr and for two years of the caliphate of Umar, counted as one repudiation', in this sense (Ikhtilaf al-Ulama, p. 133).
The qadi Abd al-Wahhab, may Allah have mercy on him, said: if he says to the unconsummated woman 'you are divorced three times', she is divorced three times, contrary to Ibn 'Ulayya who said that she is divorced only once; according to the hadith of Ibn Umar: 'O Messenger of Allah, do you see, if I had divorced her three times? He said: she would have been finally separated from you and it would have been disobedience', without distinction; and because she is in a marital state like after consummation; and because his words 'three times' explain his intent in 'you are divorced', as shown by the fact that if he had confined himself to saying 'you are divorced' while adding 'I intended by it the three', it would have been accepted from him: the taking effect is therefore necessary (al-Ishraf 'ala nukat masa'il al-khilaf 3/426-427, no. 1243).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: the people of knowledge agreed that whoever divorces his wife with whom he has not consummated the marriage with a single repudiation, she is finally separated from him and becomes lawful only through a new marriage, and he has no waiting period over her. They differed over the man who divorces the unconsummated woman three times in a single formula. A group said: she does not become lawful for him until she has married another husband; so said Ibn Abbas, Abu Hurayra, Abdallah ibn Amr ibn al-As, Abdallah ibn Umar, Anas ibn Malik and Ibn Mas'ud; and Sa'id ibn al-Musayyib, Ibn Sirin, Ibn Ma'qil, 'Ikrima, an-Nakha'i, ash-Sha'bi, Sa'id ibn Jubayr, al-Hakam, Malik, Ibn Abi Layla, ath-Thawri, al-Awza'i, ash-Shafi'i, Ahmad, Abu Thawr and the adherents of rational opinion said the same; and it was reported from Ali and Zayd. Abu Bakr (Ibn al-Mundhir) said: and this is our view. Sa'id ibn Jubayr, Tawus, Abu ash-Sha'tha', 'Ata' and 'Amr ibn Dinar said: whoever divorces the virgin three times, it counts as one repudiation. The reports from Ibn Abbas differed: Tawus reported from him: 'divorce, during the lifetime of the Messenger of Allah, of Abu Bakr and for two years of the caliphate of Umar, the threefold divorce counted as one repudiation.' Sa'id ibn Jubayr, Mujahid, 'Ata' and Malik ibn al-Harith reported from Ibn Abbas contrary to the narration of Tawus (al-Ishraf 'ala nukat masa'il al-khilaf 5/187-188; al-Awsat 9/151, 155).
Al-Qurtubi, may Allah have mercy on him, said: in 'al-Ishraf' of Ibn al-Mundhir: Sa'id ibn Jubayr, Tawus, Abu ash-Sha'tha', 'Ata' and 'Amr ibn Dinar said: whoever divorces the virgin three times, it counts as one repudiation. I say: perhaps they reasoned thus: the unconsummated woman has no waiting period; when he says 'you are divorced three times', she is separated by the very completion of his words 'you are divorced'; the words 'three times' reach her while she is already separated and therefore have no effect; and because his words 'you are divorced' are independent in themselves, the separation of the unconsummated woman cannot depend on what would come after (Tafsir al-Qurtubi 3/133). Ibn Hubayra, may Allah have mercy on him, said: they agreed: when the husband says to the unconsummated woman 'you are divorced three times', she is divorced three times (al-Ifsah 2/174).
Imam al-Mawardi, may Allah have mercy on him, said: ash-Shafi'i said: 'If he says to the one with whom he has not consummated the marriage: you are divorced three times according to the Sunna, the three take effect together.' Al-Mawardi said: when he divorces the unconsummated woman three times, she is divorced three times: this is the view of the majority. 'Ata' ibn Yasar and al-Maghribi said: she is divorced once, for she separated by his words 'you are divorced', and his words 'three times' produced no effect after the separation; yet this statement is invalid: the taking effect of the three occurs through his words 'you are divorced', which bear the number, and his words 'three times' explain the number intended by 'you are divorced'; that is why this formula came in the accusative as an explanation, like the one who says: 'he owes me twenty dirhams': the word dirham, in the accusative, explains the number; likewise the three repudiations explain the number. It was reported from Abdallah ibn Umar that he was asked about the unconsummated woman divorced three times. 'Ata' ibn Yasar said: I said: and twice? Abdallah ibn Umar answered: 'One separates her, and three make her forbidden until she marries another husband' (al-Hawi al-Kabir 10/189).
Once it is established that the threefold divorce takes effect upon the unconsummated woman as upon the consummated one, if he says to her, while she has not been consummated, 'you are divorced three times according to the Sunna', the three take effect together, whatever her state, menstruating or pure; for we have mentioned that the divorce of the unconsummated woman entails neither Sunna nor innovation, and that the number of repudiations likewise entails neither Sunna nor innovation. According to Abu Hanifa, she is divorced once, which separates her, and the others do not take effect; this follows from his principle that the threefold divorce is an innovation, the Sunna being that one repudiation occur at each period; yet she is separated by the first repudiation, and the others do not take effect: we have discussed this with him above (al-Hawi al-Kabir 10/189).
Al-'Amrani, may Allah have mercy on him, said: if he says to the one with whom he has not consummated the marriage 'you are divorced three times', the three take effect upon her; all the jurists said so, except a narration reported from 'Ata', who said that only one repudiation takes effect. Our proof: his words 'you are divorced' are a noun designating a category of act, valid for one repudiation as for more; and his words 'three times' explain it: the three therefore take effect upon her at once (al-Bayan 10/115).
Imam Ibn Qudama, may Allah have mercy on him, said: if he divorces three times in a single word, the three take effect and she becomes forbidden to him until she marries another husband, with no difference between before and after consummation; this was reported from Ibn Abbas, Abu Hurayra, Ibn Umar, Abdallah ibn Amr, Ibn Mas'ud and Anas; it is the view of most of the people of knowledge among the successors and the imams after them. 'Ata', Tawus, Sa'id ibn Jubayr, Abu ash-Sha'tha' and 'Amr ibn Dinar said: whoever divorces the virgin three times, it counts as one repudiation (al-Mughni 7/282).
Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, was asked about a man who had contracted marriage on the condition that she reach majority, without having consummated the marriage nor touched her, and then divorced her three times; then another man contracted with her without consummating the marriage nor touching her, then divorced her three times: may the first marry her? He answered: when he divorces her before consummation, according to the four imams it is as if he had divorced her after consummation: she does not become lawful to him until she has married another husband who has consummated the marriage with her; when he divorced her before consummation, she therefore does not become lawful to the first. He was also asked about a man who married a virgin girl and then divorced her three times without touching her: may he contract a second marriage with her? He answered: the threefold divorce of the virgin is, according to most of the imams, like the threefold divorce of the consummated wife (Majmu' al-Fatawa 32/80).
Second case: he says to her 'you are divorced, you are divorced, you are divorced', or 'you are divorced and divorced and divorced', without intending the three by the first formula.
The jurists differed: if the man says to his unconsummated wife three times 'you are divorced', without intending the three by the first, do the repudiations take effect three times or once? The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, hold that by his first words 'you are divorced', a single repudiation takes effect and she is separated by it; nothing of what follows applies to her: for he separated the formulas, and one repudiation therefore took effect by the first, separating her; nothing of what follows takes effect, for she is separated by it, and she has no waiting period since the marriage was not consummated; the second and the third do not take effect, for no locus of taking effect remains: both are annulled. This differs from his words 'you are divorced three times': the three take effect together by the first formula, without ordering (the Muwatta of Malik according to the narration of Muhammad ibn al-Hasan 2/516; al-Mabsut 6/89; al-Bunaya 5/354; al-Hawi al-Kabir 10/189-190; al-Muhadhdhab 2/84-85; al-Bayan 10/115-116; al-Ifsah 2/174; al-Mughni 7/367).
Muhammad ibn Nasr al-Marwazi, may Allah have mercy on him, said: if he says, without having consummated the marriage: 'you are divorced, you are divorced, you are divorced', Sufyan, the adherents of rational opinion, ash-Shafi'i and Abu Ubayd said: she is separated from him by the first, and the other two count for nothing; for the unconsummated woman is separated by a single repudiation and has no waiting period: when she is separated by the divorce and he then says to her 'you are divorced', this is like the divorce pronounced upon a woman not his wife, which therefore does not take effect. Malik, Rabi'a, the adherents of rational opinion, the people of Medina, al-Awza'i and Ibn Abi Layla said: if he says to her three times 'you are divorced', one after the other, she becomes forbidden to him until she marries another husband; if he remains silent between the two repudiations, she is separated by the first and the second does not apply to her (Ikhtilaf al-Ulama, p. 134).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: chapter on the disagreement over the threefold divorce before consummation. They differed over the man who says to his wife with whom he has not consummated the marriage: 'you are divorced, you are divorced, you are divorced'. A group said: she is separated by the first, and the two formulas that follow count for nothing. This view was reported to us from an-Nakha'i, Abu Bakr ibn Abd ar-Rahman ibn al-Harith, 'Ikrima, Hammad ibn Abi Sulayman and al-Hakam; al-Hakam mentioned it from Ali, Ibn Mas'ud and Zayd. And Sufyan ath-Thawri, ash-Shafi'i, Ahmad, Abu Ubayd, Abu Thawr and the adherents of rational opinion said the same.
We say the same: when the first occurred, she was not in a waiting period for the second and the third to take effect. The question nevertheless carries two positions: if he joins his words, the three repudiations take effect and she becomes forbidden to him until she marries another husband; so said al-Awza'i, al-Layth ibn Sa'd and Malik. Malik said: if he has no intention [of repeating them], they do not take effect (al-Ishraf 5/188-189).
Imam al-Mawardi, may Allah have mercy on him, said: ash-Shafi'i said: 'If he says to her: you are divorced, you are divorced, you are divorced, the first takes effect and she is separated without a waiting period; and Allah knows best.' Al-Mawardi said: this concerns the unconsummated woman: if he says to her three times 'you are divorced', intending by the second and the third the resumption of the marriage, she is divorced once by the first formula, and nothing takes effect by the second or the third, for she separated by the first. Malik said: she is divorced three times if he says it continuously, for a part of his speech is linked to the other, and the ruling of the first is suspended upon the last: this is like his words 'you are divorced three times'. Yet this statement is invalid: it is an ordered divorce of which one part preceded the other; when the preceding part takes effect, it prevents the taking effect of the part that follows (al-Hawi al-Kabir 10/189).
Ibn Qudama, may Allah have mercy on him, said, in one question: 'When he says to a consummated wife: you are divorced, you are divorced, two repudiations become final for him, unless he intended by the second to inform her that the first had taken effect: only one then becomes final for him. If she was not consummated, she is separated by the first and nothing of what follows applies to her; for it is the initiation of a speech...' As for the unconsummated woman, she is divorced only by a single repudiation, whether he intended the pronouncement or not, whether he says it separately or continuously: this is the view of Abu Bakr ibn Abd ar-Rahman ibn al-Harith, 'Ikrima, an-Nakha'i, Hammad ibn Abi Sulayman, al-Hakam, ath-Thawri, ash-Shafi'i, the adherents of rational opinion, Abu Ubayd and Ibn al-Mundhir; al-Hakam mentioned it from Ali, Zayd ibn Thabit and Ibn Mas'ud. Malik, al-Awza'i and al-Layth said: two repudiations take effect; and if he says it three times, the three take effect if his speech is continuous, for he divorced her three times in a continuous speech, resembling his words 'you are divorced three times'.
Our proof: it is a separated divorce in the case of the unconsummated woman, so the first does not take effect, as if he had separated his speech; and because the unconsummated woman is separated by a single repudiation, having no waiting period: the second repudiation therefore meets her already separated, and the divorce cannot take effect, for she is no longer a wife: only the wife can be divorced; and because it is the statement of the companions whom we have named, of whom no opponent is known in their era: this amounts to a consensus (al-Mughni 7/367).
The Malikis said: when the man says to the unconsummated woman 'you are divorced, you are divorced, you are divorced' with joined formulas, she is divorced three times: for every husband possesses the right to pronounce three repudiations by a single word, and it is valid for him to pronounce them by three joined formulas, as for the consummated wife; and because the joined utterance falls under the ruling of the whole pronounced by a single word: pronouncing by three joined formulas (al-Ishraf 'ala nukat masa'il al-khilaf 3/427, no. 1244).
Imam Ibn Rushd, may Allah have mercy on him, said: when he says to the unconsummated woman 'you are divorced, you are divorced, you are divorced' in rhythm, it counts as three repudiations according to Malik; Abu Hanifa and ash-Shafi'i said: only one takes effect. Whoever likened the repetition of the formula to the number, by saying 'I divorced you three times', held that the divorce takes effect three times; and whoever holds that the single formula already separates her said that the second and the third do not take effect (Bidayat al-Mujtahid 2/60).