Fiqh of conditional divorce
Answered by Shaykh Muhammad ibn Adam al-Kawthari
Question:
Let's say, I picture my wife feeling attracted towards another man I know, and I get so mad I say "divorce", is this a conditional divorce, on the condition that my wife was attracted to that other man, because it was the thought of my wife being attracted to another man, that led me to say that... (by the way I had a specific man on my mind.) or did the divorce already take place?
In the name of Allah, Most Compassionate, Most Merciful,
If a husband issues his wife a divorce without conditioning the divorce to some future event or incident, then the divorce is considered unconditional. As such, divorce will come into effect the moment he pronounces it.
However, if he was to tie and condition the divorce to some future event such as saying that if his wife enters the house she is divorced, then in such a case, divorce will be effected upon the occurrence of that event.
Imam al-Mawsili (may Allah have mercy on him) states:
“If one tied the divorce to (the occurring) of a condition, divorce will be effected when the condition takes place. And the oath will come to an end (m: with the divorce), because when the condition (i.e. the act) takes place, the oath no longer remains, except when saying “whenever”….” (al-Ikhtiyar li ta’lil al-Mukhtar, 2/172)
This conditioning of the divorce must be in verbal utterance just as the divorce itself has to be uttered verbally. If one divorced the wife in one’s mind, it will not be valid, hence similarly, if one divorced one’s wife verbally but had the condition in the mind, then that will not be valid also.
In other words, if the husband divorced his wife verbally but in his mind he had conditioned the divorce to some future event, then this condition will have no effect, hence divorce will be effected without the event taking place.
Therefore, if a man pictured his wife being attracted to someone he knows, and because of this he pronounced divorced to his wife, then divorce will come into effect. This divorce will not be considered conditional to her being attracted to another man unless the husband utters this verbally by saying to her: If you become attracted to another man, you are divorced”.
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK
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