The Ruling on the Condition of Placing the Power of Divorce in the Wife’s Hand in the Marriage Contract
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The questioner:
Honorable Shaykh, regarding conditions in marriage: if a woman conditions that the power of divorce be in her hand, and the husband agrees, is this condition invalid or valid?
The Shaykh:
Divorce is a right belonging to the husband. So if he appoints her to divorce herself, that is permissible for him. He appoints her, and therefore the one who divorces his wife is either with him, or the wife herself, or he says that he appoints someone, because it is his right to exercise it himself or to appoint someone to act on his behalf. As for the condition that the power of divorce be hers from the beginning of the contract, I do not see that as correct, because this makes the woman rebellious against the man, and it is a means for her to become the one who divorces, even if she did not condition it in the man’s hand now. In attempts in some countries, unfortunately, that claim to be Muslim, they place the power of divorce in the woman’s hand. This is contrary to the ruling of Allah, Glorified and Exalted is He, and contrary to what Allah, Mighty and Majestic, has prescribed.
The questioner:
And if she conditions, may Allah forgive you, that he not marry another woman over her, the condition is valid.
The Shaykh:
It is valid, but it does not prevent him from marrying. He may marry, and he will have the option after the marriage. If he marries another woman over her, he will have the option for her to leave or for the marriage to be annulled, but it is not forbidden for him to marry.
Honorable Shaykh, regarding conditions in marriage: if a woman conditions that the power of divorce be in her hand, and the husband agrees, is this condition invalid or valid?
The Shaykh:
Divorce is a right belonging to the husband. So if he appoints her to divorce herself, that is permissible for him. He appoints her, and therefore the one who divorces his wife is either with him, or the wife herself, or he says that he appoints someone, because it is his right to exercise it himself or to appoint someone to act on his behalf. As for the condition that the power of divorce be hers from the beginning of the contract, I do not see that as correct, because this makes the woman rebellious against the man, and it is a means for her to become the one who divorces, even if she did not condition it in the man’s hand now. In attempts in some countries, unfortunately, that claim to be Muslim, they place the power of divorce in the woman’s hand. This is contrary to the ruling of Allah, Glorified and Exalted is He, and contrary to what Allah, Mighty and Majestic, has prescribed.
The questioner:
And if she conditions, may Allah forgive you, that he not marry another woman over her, the condition is valid.
The Shaykh:
It is valid, but it does not prevent him from marrying. He may marry, and he will have the option after the marriage. If he marries another woman over her, he will have the option for her to leave or for the marriage to be annulled, but it is not forbidden for him to marry.
Source
شرح الكافية الشافية في الانتصار للفرقة الناجية [ القصيدة النونية ] [ صالح الفوزان ]، فصل : في بيان الاستغناء بالوحي المنزل من السماء عن تقليد الرجال والآراء — islamhouse.com (1:06:50)
The Arabic text is a machine transcription of the audio recording.