What is the ruling on swearing an oath by divorce?
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The Shaykh : ... .
The questioner : May Allah reward you...?
The Shaykh : ...As for swearing an oath by divorce, it is an innovation that was not known in the time of the Prophet (peace and blessings be upon him) or the time of the Companions. It is when a person wants to emphasize something and says, "If I do such-and-such, my wife is divorced," or "If I do not do such-and-such, my wife is divorced." Unfortunately, this has become common among people today, and many problems have arisen because of it. I am telling you this, so understand it: If a man says to his wife, "If you leave the house, you are divorced," and she leaves, is she divorced or not?
The answer is: She is divorced, whether he intended the divorce or intended to prevent her; she is divorced in all cases. This is the view of the majority of the Ummah and the majority of the Imams, meaning this is the view of Imam Ahmad, al-Shafi'i, Malik, Abu Hanifah, and the majority of the Muslim Ummah. If a man says to his wife, "If you leave the house, you are divorced," or says to his guest—as is common among many of the common people—he says to his guest, "I swear by divorce that I will slaughter a sacrificial animal for you," and the guest says, "I swear by divorce that I will not eat this sacrificial animal." Yes, we ask Allah for safety. This is common among the common people, especially among the Bedouins. The majority of the Ummah and the Imams are on what? They are on the position that the divorce takes place. However, Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) established that this depends on the intention of the speaker. If his intention is divorce, she is divorced; if his intention is prevention, she is not divorced, but he must expiate the oath.
And I brought this to you so that you know that the matter is not that trivial thing, so that you know that the matter is not that trivial thing. A person is in danger, even if he is issued a ruling that he must expiate the oath and the wife returns; even if he is issued that ruling, he is in danger, because the majority of the Ummah say: Did she get divorced or not? She got divorced.
I want you to restrain your tongues from this and not to rush into such expressions, lest you fall into severe difficulty and into contradiction. If I issue a ruling to you that it is obligatory for you to expiate the oath, you will be in contradiction with the majority of scholars. So the matter is not trivial. Yes.
The questioner : May Allah reward you...?
The Shaykh : ...As for swearing an oath by divorce, it is an innovation that was not known in the time of the Prophet (peace and blessings be upon him) or the time of the Companions. It is when a person wants to emphasize something and says, "If I do such-and-such, my wife is divorced," or "If I do not do such-and-such, my wife is divorced." Unfortunately, this has become common among people today, and many problems have arisen because of it. I am telling you this, so understand it: If a man says to his wife, "If you leave the house, you are divorced," and she leaves, is she divorced or not?
The answer is: She is divorced, whether he intended the divorce or intended to prevent her; she is divorced in all cases. This is the view of the majority of the Ummah and the majority of the Imams, meaning this is the view of Imam Ahmad, al-Shafi'i, Malik, Abu Hanifah, and the majority of the Muslim Ummah. If a man says to his wife, "If you leave the house, you are divorced," or says to his guest—as is common among many of the common people—he says to his guest, "I swear by divorce that I will slaughter a sacrificial animal for you," and the guest says, "I swear by divorce that I will not eat this sacrificial animal." Yes, we ask Allah for safety. This is common among the common people, especially among the Bedouins. The majority of the Ummah and the Imams are on what? They are on the position that the divorce takes place. However, Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) established that this depends on the intention of the speaker. If his intention is divorce, she is divorced; if his intention is prevention, she is not divorced, but he must expiate the oath.
And I brought this to you so that you know that the matter is not that trivial thing, so that you know that the matter is not that trivial thing. A person is in danger, even if he is issued a ruling that he must expiate the oath and the wife returns; even if he is issued that ruling, he is in danger, because the majority of the Ummah say: Did she get divorced or not? She got divorced.
I want you to restrain your tongues from this and not to rush into such expressions, lest you fall into severe difficulty and into contradiction. If I issue a ruling to you that it is obligatory for you to expiate the oath, you will be in contradiction with the majority of scholars. So the matter is not trivial. Yes.