What is the ruling on one who swears an oath of divorce and makes it conditional?
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The Shaykh : ...if he intended by it an oath, the Prophet (peace and blessings be upon him) said: Musannaf Ibn Abi Shaybah 7:126, and if he intended by it divorce, this means that if this action occurs on his part three times, his wife becomes forbidden to him. Then I clarify to Umm 'Abd al-Rahman and to anyone other than Umm 'Abd al-Rahman that the majority of scholars, including the four Imams: Malik, Abu Hanifah, al-Shafi'i, and Ahmad, hold that conditional divorce is a pure condition, and its ruling is never the ruling of an oath. And that even if he intended to prevent, urge, or threaten, the divorce still takes effect in any case. So if he says to his wife, "If you leave the house, you are divorced," intending to prevent her and not intending divorce, and then she leaves, she is divorced according to the four schools of jurisprudence. So the matter is serious, it is not trivial, and people play with this because they saw that those who issue fatwas say that a divorce intended to mean an oath has the ruling of an oath.
I say that people's negligence in this matter is not to be taken lightly. So a person must fear Allah, and not be negligent with his wife, and not lie with a woman who is forbidden according to the majority of the Ummah and its Imams. Because if a person says to his wife, for example, "If you leave the house without my permission, you are divorced," and he had already divorced her twice before, and he intended by this to prevent her and not to divorce her, and then she leaves, the majority of scholars and the Imams of Islam hold that the woman is divorced and that she is not lawful for him except after another husband. So if he follows the opinion of those who say that this has the ruling of an oath and that he must expiate the oath, and the woman is not divorced, and then he has intercourse with her, he is having intercourse with her according to the opinion of the majority of the Ummah. What is that?
It is zina, zina. And according to this opinion, he is having lawful intercourse with her. So the matter is serious, and it is obligatory for students of knowledge to be cautious. And now there are Shaykhs who have their weight and value in the Islamic Ummah who deny, with severe denial, those who issue fatwas that this has the ruling of an oath. They deny with a great denial, and they may invalidate the fatwa if it is issued, saying that they do not see it as correct.
So it is obligatory for a person to fear Allah in this matter, and not to be negligent with this affair.
And this is also for Umm 'Abd al-Rahman. He says: May the mercy and blessings of Allah be upon you, and upon you be the mercy and blessings of Allah. This is my answer.
Whoever swears an oath, let him swear by Allah
من حلف فليحلف باللهI say that people's negligence in this matter is not to be taken lightly. So a person must fear Allah, and not be negligent with his wife, and not lie with a woman who is forbidden according to the majority of the Ummah and its Imams. Because if a person says to his wife, for example, "If you leave the house without my permission, you are divorced," and he had already divorced her twice before, and he intended by this to prevent her and not to divorce her, and then she leaves, the majority of scholars and the Imams of Islam hold that the woman is divorced and that she is not lawful for him except after another husband. So if he follows the opinion of those who say that this has the ruling of an oath and that he must expiate the oath, and the woman is not divorced, and then he has intercourse with her, he is having intercourse with her according to the opinion of the majority of the Ummah. What is that?
It is zina, zina. And according to this opinion, he is having lawful intercourse with her. So the matter is serious, and it is obligatory for students of knowledge to be cautious. And now there are Shaykhs who have their weight and value in the Islamic Ummah who deny, with severe denial, those who issue fatwas that this has the ruling of an oath. They deny with a great denial, and they may invalidate the fatwa if it is issued, saying that they do not see it as correct.
So it is obligatory for a person to fear Allah in this matter, and not to be negligent with this affair.
And this is also for Umm 'Abd al-Rahman. He says: May the mercy and blessings of Allah be upon you, and upon you be the mercy and blessings of Allah. This is my answer.