Does an oath by divorce take effect? And is “an oath by divorce is not a divorce” a hadith?

Question:
The listener, Abdulmuhassin Usamah Muhammad, from northern Yemen, sent a question saying: Does an oath by divorce to confirm one’s words, without the intention of divorce, result in a divorce or not? And is the phrase “an oath by divorce is not a divorce” a hadith from the Messenger of Allah (peace and blessings be upon him)?

Answer:
It is not a hadith from the Prophet (peace and blessings be upon him), but there is a detailed ruling:
If an oath by divorce is intended to effect a divorce, the divorce takes effect. If it was not intended to be a divorce, there is an expiation for an oath according to a group of scholars. Some scholars consider it a divorce, absolutely, even if the intention was an oath.
An oath by divorce is like saying: “Divorce is upon you if you speak to so-and-so,” “Divorce is upon you if you do not leave the house,” “Divorce is upon you if you do not speak to so-and-so,” “Divorce is upon you if so-and-so does not visit.” This is called an oath if the intention is prohibition, or encouragement, or verification, or falsification. So if he says: “Divorce is upon you if you do not speak to your brother so-and-so, or your neighbor so-and-so,” and his intention is to prohibit her, not to separate from her, then if she speaks, he owes an expiation for an oath. Likewise, if he says: “Divorce is upon you if so-and-so does not visit,” and his intention is to prohibit himself from visiting, this is called an oath.
As for if he intended to effect a divorce, then the divorce takes effect upon the visit; because he conditioned it upon it. So if she visits, one divorce takes effect as he said, just as if he said: “If Ramadan enters, you are divorced.” This is not called an oath; this is a conditional divorce. If Ramadan enters, she is divorced. Or if he said: “When you menstruate, or when you give birth, or the like.”
The point is: If the conditional divorce was not intended for verification, or falsification, or encouragement, or prohibition, but only for the condition itself, then it takes effect. If you speak to Zayd, you are divorced; his intention is that the divorce takes effect, so the divorce takes effect. If Ramadan enters, you are divorced; it takes effect when Ramadan enters. But if he says: “If you speak to Zayd,” and his intention is to prohibit her from speaking, not wanting her to speak to him, then if she speaks to him, he owes an expiation for an oath; because he intended to prohibit her, so it is called an oath according to the most correct opinion of the scholars, and only the expiation is due.
And some scholars said: The divorce takes effect absolutely, even if the intention was an oath. This is a weak opinion.
And the correct view is: Whenever the intention is an oath, there is no divorce upon her, but he owes the expiation. The scholars argued for this with many pieces of evidence, among which is his saying (peace and blessings be upon him): And he did not intend anything but to prohibit her; he did not intend to effect a divorce, he only intended to prohibit her, or to prohibit himself from something.
And among the evidence is what occurred in the fatwas of some of the Companions regarding one who swore not to do such-and-such, and if he did, his slaves are free and his wealth is charity. Ibn Umar and some of the female Companions issued a fatwa in this matter that it is an oath. And divorce is more severe; divorce is detested by Allah. So if freeing slaves and giving charity is an oath, then divorce is all the more so.
It is narrated from a group of the Companions that they considered it an oath. It is narrated from Ali and al-Zubayr and a group that they considered it an oath.
So the conclusion is: This divorce was not intended by its owner, and the Messenger (peace and blessings be upon him) says: And he only intended prohibition, or encouragement, or verification, or falsification. So if he says: “Divorce is upon you if you do not speak to so-and-so,” he said: he intended to prohibit himself. And if he says: “Divorce is upon you if so-and-so visits,” he intended to encourage himself to visit. And if he says: “Divorce is upon you if he did not do such-and-such,” he intended to verify that he is truthful in that. Or if he says: “Divorce is upon you, for example, if so-and-so is a liar,” and he intended by that to falsify so-and-so.
So the conclusion is: He did not intend to effect a divorce, he only intended another meaning, so according to the correct view, he gets what he intended, and he owes the expiation if he intended this meaning, and the divorce does not take effect. Yes.

The presenter: May Allah reward you with good.