When attending some marriage contracts, we hear that the woman requests that her divorce and her affairs be in her own hands. What is the ruling on this?
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The questioner : His EminenceThe Shaykh : We hear at some marriage contracts that the woman requests that the power of divorce be in her hand, or that her affairs be in her hand. What is the ruling on this?
The Shaykh : Meaning: she divorces herself whenever she wishes?The questioner : Whenever she wishes.
The Shaykh : This is not valid.
The questioner : And what is the ruling of the contract, O Shaykh, if the husband agrees?
The Shaykh : The contract is valid, but the condition is not valid. However, the one who performs the contract, the authorized person, must say before he performs it: "This condition is not valid." Do you understand? But she has the option in another matter—for example, if she says to him: "If I do not find it pleasant to stay with your family, then I have the option," or "If your character is not as it should be, then I have the option." In this matter, the scholars differed: some of the scholars say that there is no harm in it, and this is the choice of Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him).
And some of them say: it is not valid, because the woman is close and far away. If her husband scolds her once, she says: "I want to choose myself." She does not have patience and does not bear it. If you treat one of them well for a whole lifetime, and then one act of ill-treatment occurs from you, she says: "I have never seen any good."
But what Shaykh al-Islam held is permissible, because it is a condition that does not contradict the implications of the contract, and the one who stipulated it has a valid purpose. And the Prophet (peace and blessings be upon him) said:Sunan Abi Dawud 2139Sahih (Al-Albani).
The questioner : O Shaykh! No difference appears between them?
The Shaykh : No, there is a difference between them. If she says: "The divorce is in my hand," it means: she divorces whenever she wishes, even without a reason.
The Shaykh : Meaning: she divorces herself whenever she wishes?The questioner : Whenever she wishes.
The Shaykh : This is not valid.
The questioner : And what is the ruling of the contract, O Shaykh, if the husband agrees?
The Shaykh : The contract is valid, but the condition is not valid. However, the one who performs the contract, the authorized person, must say before he performs it: "This condition is not valid." Do you understand? But she has the option in another matter—for example, if she says to him: "If I do not find it pleasant to stay with your family, then I have the option," or "If your character is not as it should be, then I have the option." In this matter, the scholars differed: some of the scholars say that there is no harm in it, and this is the choice of Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him).
And some of them say: it is not valid, because the woman is close and far away. If her husband scolds her once, she says: "I want to choose myself." She does not have patience and does not bear it. If you treat one of them well for a whole lifetime, and then one act of ill-treatment occurs from you, she says: "I have never seen any good."
But what Shaykh al-Islam held is permissible, because it is a condition that does not contradict the implications of the contract, and the one who stipulated it has a valid purpose. And the Prophet (peace and blessings be upon him) said:
The condition worthier to be fulfilled by you is the one by which you made the private parts (of your wife) lawful (for you).
إن أحق الشروط أن توفوا به ما استحللتم به الفروجThe questioner : O Shaykh! No difference appears between them?
The Shaykh : No, there is a difference between them. If she says: "The divorce is in my hand," it means: she divorces whenever she wishes, even without a reason.