If a man swears by divorce regarding his wife and she is unaware of it, does the divorce take effect?
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The questioner : If a man swears by divorce regarding his wife and she is unaware of this, what is the ruling of the Shari'ah in your view in this matter?
The Shaykh : Before answering this question, I would like to offer advice to our Muslim brothers: do not make it a habit to swear by divorce. The Prophet (peace and blessings be upon him) said:Sahih al-Bukhari 2679.
Scholars have differed on the issue of swearing by divorce. Some hold that the divorce takes effect in all cases. Thus, if a man says, "If I do such-and-such, my wife is divorced," or "If I do not do such-and-such, my wife is divorced," and he then violates the condition, some scholars hold that his wife is divorced in any case, because he made the divorce conditional on a specific condition, and that condition was fulfilled. Other scholars hold that it depends on his intention. If his intention was for the divorce to take effect upon violating the condition, then the divorce takes effect. However, if his intention was to emphasize his abstention from that thing, or to emphasize doing that thing, or to threaten his wife if the statement was directed at her, then it is considered an oath, and the divorce does not take effect upon violating the condition. Rather, it is obligatory for him to pay the expiation for an oath.
Since there is scholarly disagreement on this issue, it is obligatory for a person to keep his tongue free from such oaths. If he wishes to swear, let him swear by Allah, or let him remain silent. The most likely of the scholars' opinions on this issue is that it depends on what the one who swore by divorce intended. If he intended an oath, it is an oath; if he intended divorce, it is a divorce. This is based on the generality of the Prophet's (peace and blessings be upon him) statement:Sahih al-Bukhari 1.
The questioner : May Allah reward you.
The Shaykh : Before answering this question, I would like to offer advice to our Muslim brothers: do not make it a habit to swear by divorce. The Prophet (peace and blessings be upon him) said:
Whoever has to take an oath should swear by Allah or remain silent.
من كان حالفاً فليحلف بالله أو ليصمتScholars have differed on the issue of swearing by divorce. Some hold that the divorce takes effect in all cases. Thus, if a man says, "If I do such-and-such, my wife is divorced," or "If I do not do such-and-such, my wife is divorced," and he then violates the condition, some scholars hold that his wife is divorced in any case, because he made the divorce conditional on a specific condition, and that condition was fulfilled. Other scholars hold that it depends on his intention. If his intention was for the divorce to take effect upon violating the condition, then the divorce takes effect. However, if his intention was to emphasize his abstention from that thing, or to emphasize doing that thing, or to threaten his wife if the statement was directed at her, then it is considered an oath, and the divorce does not take effect upon violating the condition. Rather, it is obligatory for him to pay the expiation for an oath.
Since there is scholarly disagreement on this issue, it is obligatory for a person to keep his tongue free from such oaths. If he wishes to swear, let him swear by Allah, or let him remain silent. The most likely of the scholars' opinions on this issue is that it depends on what the one who swore by divorce intended. If he intended an oath, it is an oath; if he intended divorce, it is a divorce. This is based on the generality of the Prophet's (peace and blessings be upon him) statement:
The reward of deeds depends upon the intentions and every person will get the reward according to what he has intended.
إنما الأعمال بالنيات، وإنما لكل امرئ ما نوىThe questioner : May Allah reward you.