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Divorce contingent upon a condition

Published: 24/08/2011 01:31:00 PM GMT
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A man told his wife after an argument that if she ever again asks him for a divorce, then she will effectively be divorced as of that moment. Another argument happened a few months later and she asked him to divorce her. He did not say anything. He just left her. What should he do now?

Answered by

Sheikh Nâyif al-Hamad, presiding judge at Rimâh District Court

The majority of scholars are of the opinion that whoever makes divorce contingent upon a condition, then the divorce occurs when that condition is met, regardless of whether the man truly intended a divorce to take place under such circumstances or merely intended to encourage or discourage his wife about some matter.

Other scholars, including Ibn Taymiyah, are of the opinion that when a man makes divorce contingent upon a condition and does so merely with the intent to encourage or discourage some behavior on her part, then it is enough for him to pay expiation for a broken oath if he does not want to go through with the divorce.

This expiation is stated in the Qur’ân as follows: “Allah will not take you to task for that which is unintentional in your oaths, but He will take you to task for the oaths which you swear in earnest. The expiation thereof is the feeding of ten of the needy with the average of that wherewith you feed your own folk, or the clothing of them, or the liberation of a slave, and for him who finds not (the wherewithal to do so) then a three days’ fast. This is the expiation of your oaths when you have sworn; and keep your oaths. Thus Allah expounds unto you His revelations in order that you may give thanks.” [Sûrah al-Mâ’idah: 89]

If he had expressly intended upon stating that condition to effect a divorce by it if and when the stated condition was fulfilled, then the divorce has occurred, even if he detests it, and he cannot prevent the divorce from taking place by paying the aforementioned expiation.

However, as long as this is only the first or second time he has ever divorced her, he can, before the end of her waiting period, ask her to come back to him and resume the marriage without a new marriage contract. Any act that shows intent to continue with the husband-wife relationship is construed as taking the wife back. This can be done simply with a pronouncement of “I take you back as my wife” or with sexual relations, or even with a kiss.

If the waiting period elapses without his taking her back, then the woman becomes as a stranger to him. However, he can still remarry her, but only with a new contract and new dowry, the same as other men. Here we have a situation where the woman will not be lawful to him unless he executes a new marriage contract with her.

If this is the third separate instance in which he divorced her, then he will not be able to take her back during her `iddah or ever marry her again unless she marries another man, consummates that other marriage, then gets divorced from the other man.

And Allah knows best.

Source: Islam Today

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