It is valid to make a conditional divorce or emancipation, as long as this happens after marriage or ownership, respectively. 1360
يَصِحُّ تَعْلِيْقُ الطَّلاَقِ وَالْعِتَاقِ بِشُرُوْطٍ بَعْدَ النِّكَاحِ وَالْمِلْكِ.
Book of Divorce
Conditional Divorce
تَعْلِيْقِ الطَّلاَقِ بِالشُّرُوْطِ
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Chapter on Conditional Divorce
1359
1359. Introduction
The normal form of divorce that occurred during the time of the Prophet (SA) was the munajjaz (immediately effective) divorce. After his death, people invented all sorts of divorces, one of which was contingent upon the occurrence of something. There are different types of contingencies here. Sometimes, one may suspend the divorce until a specific time in the future, such as the beginning of the month of Muḥarram.
(A) + (+H, +S): When that time comes, the divorce takes place.
(M): Divorce takes place immediately upon this pronouncement.
(Z): This divorce is not valid.
The other contingency is the performance of or abstention from a certain action which may or may not take place. The discussion below is about this scenario.
1360. The Legal Consequences of Conditional Divorce
When a man says to his wife, “If you do (or do not do) such-and-such, you become divorced,” this is called a conditional divorce.
(A) + (+H, +M, +S): She is divorced when the condition is fulfilled.
(Z) and the Imamite Shiites: It does not count as a divorce.
(t) and currently adopted by the laws of Egypt, Syria, Jordan, and other Muslim countries: It depends on the husband’s intention. If he means to encourage someone to do something or refrain from it, as in the case of all other oaths, it will count as an oath, for which he will need to expatiate. If he intends that his wife in fact becomes divorced, then she is divorced when the condition is fulfilled.
The majority reported some fatwas from Companions such as Ibn ‘Umar and Ibn Mas‘ood to support their position. Ibn Ḥazm reported counter positions from other Companions like ‘Ali. (t) argued that the reconciliation of all positions is to differentiate among the different types of conditional divorces on the basis of what the husband intended. He and his supporters, including Imam Ibn al-Qayyim, argued that this would be more consistent with the saying of the Messenger of Allah (SA):
It is not valid before that (marriage or ownership). For example, if he says, “If I marry So-and-so, she is divorced,” or, “If I own her, she is free,” and then he marries her or owns her, she does not become divorced or free. 1361
وَلاَ يَصِحُّ قَبْلَهُ، فَلَوْ قَالَ: إِنْ تَزَوَّجْتُ فُلاَنَةً، فَهِيَ طَالِقٌ، أَوْ إِنْ مَلَكْتُهَا، فَهِيَ حُرَّة، فتزوجها أو ملكها لَمْ تَطْلُقْ، وَلَمْ تَعْتِقْ.
The conjunctions of conditional sentences are six: in (if), idhâ (once), ayy (whichever), matâ (when), man (whoever), kullamâ (every time). None of them indicates repetition except kullamâ.
وَأَدَوَاتُ الشَّرْطِ سِتٌّ: إِنْ، وَإِذَا، وَأَيُّ، ومَتَى، وَمَنْ، وَكُلَّمَا، وَلَيْسَ فِيْهَا مَا يَقْتَضِيْ التِّكْرَارَ إِلاَّ كُلَّمَا.
For all of them, when used in an affirmative sentence, the consequent takes place upon the occurrence of the condition (antecedent). For example, if he says, “If you stand up, you are divorced,” and then she stands up, she becomes divorced, and the conditional statement is no longer operative. However, if he says, “Every time you stand up, you become divorced,” she becomes divorced every time she stands up. 1362
وَكُلُّهَا إِذَا كَانَتْ مُثْبَتَةً، ثَبَتَ حُكْمُهَا، عِنْدَ وُجُوْدِ شَرْطِهَا، فَإِذَا قَالَ: إِنْ قُمْتِ فَأَنْتِ طَالِقٌ، فَقَامَتْ، طَلُقَتْ، وَانْحَلَّ شَرْطُهُ، وَإِنْ قَالَ: كُلَّمَا قُمْتِ، فَأَنْتِ طَالِقٌ، طَلُقَتْ كُلَّمَا قَامَتْ.
If used in a negative sentence, as when he says, “If I don’t divorce you, you are divorced,” it will be suspended if he didn’t intend a particular time,
وَإِنْ كَانَتْ نَافِيَةً، كَقَوْلِهِ: إِنْ لَمْ أُطَلِّقْكِ، فَأَنْتِ طَالِقٌ، كَانَتْ عَلىٰ التَّرَاخِيْ، إذا لم يَنْوِ وقتًا بِعَينِهِ فَلاَ يَقَعُ الطَّلاَقُ إِلاَّ فِيْ
1361. This is because the Messenger of Allah (SA) said:
“There is no (binding) vow for the son of Adam over that which he does not possess, and there is no (binding) emancipation concerning those he does not own, and there is no (binding) divorce for/on him before he possesses the right to it.” (T – from Ibn ‘Amr. T:RS)
لا نَذْرَ لابْن آدَمَ فِيمَا لاَ يَمْلِكُ، ولاَ عِتْقَ لَهُ فِيمَا لاَ يَمْلِكُ، ولا طَلاَقَ لَهُ فِيمَا لاَ يَمْلِكُ
1362. This Takes Us to the Possibility of Rescinding that Statement
(A) + (+H, +M, +S): The husband has no right to rescind it.
(a) + (-t): He may rescind it.
without the divorce occurring until the last time of possibility. 1363
آخِرِ أَوْقَاتِ اْلإِمْكَانِ.
The rest of the conditional clauses (aside from ‘if’) will mean immediacy. For example, if he says, “When I don’t divorce you, you are divorced,” and he does not divorce her, she becomes immediately divorced.
وَسَائِرُ اْلأَدَوَاتِ عَلىٰ اْلفَوْرِ، فَإِذَا قَالَ: مَتَى لَمْ أُطَلِّقْكِ، فَأَنْتِ طَالِقٌ، وَلَمْ يُطَلِّقْهَا، طَلُقَتْ فِيْ اْلحَالِ.
If he says, “Every time I don’t divorce you, you become divorced,” and a time elapses during which he could have divorced her three times, but he did not divorce her, then she becomes divorced three times (if her marriage was consummated).
وَإِنْ قَالَ: كُلَّمَا لَمْ أَطَلِّقْكِ، فَأَنْتِ طَالِقٌ، فَمَضَى زَمَنٌ يُمْكِنُ طَلاَقُهَا فِيْهِ ثَلاَثاً وَلَمْ يُطَلِّقْهَا، طَلُقَتْ ثَلاَثاً إِنْ كَانَتْ مَدْخُوْلاً بِهَا.
If he says, “Every time you give birth to a child, you become divorced,” and she gives birth to twins, then she becomes divorced upon the birth of the first. Upon the birth of the second child, her divorce becomes finalized because her ‘iddah is ended by this birth, but no divorce results from his birth. 1364
وَإِنْ قَالَ: كُلَّمَا وَلَدْتِ وَلَدًا، فَأَنْتِ طَالِقٌ، فَوَلَدَتْ تَوْأَمَيْنِ، طَلُقَتْ بِاْلأَوَّلِ، وَبَانَتْ بِالثَّانِيْ؛ لاِنْقِضَاءِ عِدَّتِهَا بِهِ، وَلَمْ تَطْلُقْ بِهِ.
If he says, “When you menstruate, you become divorced,” she becomes divorced at the beginning of her ḥayḍ. If it turns out that it was not ḥayḍ, then she is not divorced. If she says, “I did menstruate,” and he contradicts her, she becomes divorced. If he says, “You menstruated,” and she contradicts him, she becomes divorced because of his admission. If he says, “If you menstruate, then you and my other wife are divorced,” and she says, “I menstruated,” but he contradicts her, then only she becomes divorced and not his other wife.
وَإِنْ قَالَ: إِنْ حِضْتِ، فَأَنْتِ طَالِقٌ، طَلُقَتْ بِأَوَّلِ اْلحَيْضِ، فَإِنْ تَبَيَّنَ أَنَّهُ لَيْسَ بِحَيْضٍ، لَمْ تَطْلُقْ. وَإِنْ قَالَتْ: قَدْ حِضْتُ، فَكَذَّبَهَا، طَلُقَتْ، وَإِنْ قَالَ: قَدْ حِضْتِ، فَكَذَّبَتْهُ، طَلُقَتْ بِإِقْرَارِهِ، وَإِنْ قَالَ: إِنْ حِضْتِ، فَأَنْتِ وَضَرَّتُكِ طَالِقَتَانِ، فَقَالَتْ: قَدْ حِضْتُ، فَكَذَّبَهَا، طَلُقَتْ دُوْنَ
1363. The last time of possibility is the last moment of his or her life, whoever dies first.
1364. Because in this case, her ‘iddah was completed, so she was not a wife to be subject to divorce.
ضَرَّتِهَا.
Conditional Divorce
( Page : no 124)