What is divorce conditional upon a condition? And what is its ruling?
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The Shaykh: Yes.
The questioner: What is the concept of divorce and its legal aspect? How is it?
The Shaykh: Divorce conditional upon a condition varies depending on the intention of the one pronouncing it. If he intended to effect the divorce, then the divorce takes place with its known conditions, despite the scholars' disagreement on some of them, including the requirement of witnesses that I mentioned earlier. However, if his intention was not divorce but rather intimidation and threat, then the divorce does not take place if the condition is met, because he did not intend divorce. The scholars divide divorce into two categories: explicit and implicit. In the case of explicit divorce, it is not accepted for him to claim he intended something other than what he uttered. As for the other, which is implicit divorce, his intention is considered because the wording can imply either meaning. Therefore, it is necessary to distinguish between explicit divorce, where one cannot say "I intended intimidation" as long as the divorce was explicit, and implicit divorce. In our view, and Allah knows best, if a man conditions his wife's divorce upon a condition, and this condition is clearly for the purpose of intimidation, then the divorce does not take place, even if there is no one who requires other conditions, as is the opinion of many scholars. For example, a man in a dispute with some of his relatives says to his wife, "If you go to your brother's house, or to so-and-so's house, or to so-and-so's house, you are divorced." It is clear here that he wants to prevent her from going to a place the husband does not approve of. She, like many women, may defy him and may even intend to trigger the divorce or force him to divorce her, so she runs away and goes. Here, it is clear that he does not actually want to divorce her, but rather wants to prevent her, so it is like an oath by divorce. On the other hand, in another scenario, if he sees her entering his neighbor's house, and she is a stranger to him, and he says "Peace be upon you," and he sees her more than once, and he becomes suspicious of her conduct, he warns her time after time and again and again, but she does not stop or show remorse. Finally, the measure overflows and the flood reaches the brim, and he says to her, "If I see you entering my neighbor's house again, you are divorced." It is clear here that the man had become suspicious of his wife's conduct, and he endured her behavior repeatedly, but she did not stop. So when he divorced her or conditioned her divorce upon this condition, and the condition was met, it is clear that he actually intended to divorce her, because what came before was for intimidation, but when the flood reached the brim, his intention was to divorce her. In any case, he is bound by his statement in such cases, and Allah is his reckoner. If he says, "I intended to divorce her," then the divorce is valid and takes place, if the mufti does not consider any condition for the divorce to take place. Is the answer clear? Yes.
The questioner: ... Is what is specified by the text an exception to this?
The Shaykh: Regarding intention, what is specified by the text is not required.
The questioner : ... .
The Shaykh: No.
The questioner : Yes.
The Shaykh: Peace be upon you, and Allah's mercy and blessings. Yes.
The questioner : ... .
The Shaykh: No ... intention.
The questioner : Yes.
The Shaykh: ... You must bring the honey sack with you.
The questioner: What is the concept of divorce and its legal aspect? How is it?
The Shaykh: Divorce conditional upon a condition varies depending on the intention of the one pronouncing it. If he intended to effect the divorce, then the divorce takes place with its known conditions, despite the scholars' disagreement on some of them, including the requirement of witnesses that I mentioned earlier. However, if his intention was not divorce but rather intimidation and threat, then the divorce does not take place if the condition is met, because he did not intend divorce. The scholars divide divorce into two categories: explicit and implicit. In the case of explicit divorce, it is not accepted for him to claim he intended something other than what he uttered. As for the other, which is implicit divorce, his intention is considered because the wording can imply either meaning. Therefore, it is necessary to distinguish between explicit divorce, where one cannot say "I intended intimidation" as long as the divorce was explicit, and implicit divorce. In our view, and Allah knows best, if a man conditions his wife's divorce upon a condition, and this condition is clearly for the purpose of intimidation, then the divorce does not take place, even if there is no one who requires other conditions, as is the opinion of many scholars. For example, a man in a dispute with some of his relatives says to his wife, "If you go to your brother's house, or to so-and-so's house, or to so-and-so's house, you are divorced." It is clear here that he wants to prevent her from going to a place the husband does not approve of. She, like many women, may defy him and may even intend to trigger the divorce or force him to divorce her, so she runs away and goes. Here, it is clear that he does not actually want to divorce her, but rather wants to prevent her, so it is like an oath by divorce. On the other hand, in another scenario, if he sees her entering his neighbor's house, and she is a stranger to him, and he says "Peace be upon you," and he sees her more than once, and he becomes suspicious of her conduct, he warns her time after time and again and again, but she does not stop or show remorse. Finally, the measure overflows and the flood reaches the brim, and he says to her, "If I see you entering my neighbor's house again, you are divorced." It is clear here that the man had become suspicious of his wife's conduct, and he endured her behavior repeatedly, but she did not stop. So when he divorced her or conditioned her divorce upon this condition, and the condition was met, it is clear that he actually intended to divorce her, because what came before was for intimidation, but when the flood reached the brim, his intention was to divorce her. In any case, he is bound by his statement in such cases, and Allah is his reckoner. If he says, "I intended to divorce her," then the divorce is valid and takes place, if the mufti does not consider any condition for the divorce to take place. Is the answer clear? Yes.
The questioner: ... Is what is specified by the text an exception to this?
The Shaykh: Regarding intention, what is specified by the text is not required.
The questioner : ... .
The Shaykh: No.
The questioner : Yes.
The Shaykh: Peace be upon you, and Allah's mercy and blessings. Yes.
The questioner : ... .
The Shaykh: No ... intention.
The questioner : Yes.
The Shaykh: ... You must bring the honey sack with you.
Source
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