Divorce: Conditional

Q159 :Having tried hard to discipline his wife, without much success, a man writes down what he wants her to do. He gives her that paper after he has written clearly at the bottom of it: "Disobedience of these instructions would be tantamount to divorce." She nevertheless disobeys his instructions and he immediately stops his marital relationship with her. Is she actually divorced? Do they require a remarriage, if they wish to resume their marital relationship?

A159 : Islam views marriage and divorce very seriously. The Prophet says that there are three matters which must be taken seriously, whether they are said in earnest or jest. These are: "marriage, divorce and freeing of a slave." If we reflect for a moment on this wisdom of making all talk on the freeing of slaves serious, we understand how much Islam cares for the feelings of those who are in a position which makes them vulnerable to abuse by other people. Let us imagine for a moment a slave whose master tells him that he would be free after three days or when he has completed a particular assignment, etc. Then three days later, or on the completion of the assignment, the master tells the slave that he was only joking and that he did not expect him to take his words seriously. The slave would be broken-hearted and he could easily harbor ill feelings toward his master. Now that slavery has disappeared, thanks to Allah, such a cruelty does not take place. We can appreciate, however, how Islam cares for the feelings of those who are vulnerable. As we all know, Islam has allowed divorce because it is needed as a solution for social problems. However, a husband who wishes to divorce his wife must abide by the rules which Allah has laid down, and the Prophet has explained and elaborated, for the divorce to be proper and valid. For example, a husband must make sure that the time is appropriate for him to divorce his wife. It is forbidden for a man to divorce his wife when she is in her menstruation period or after they had sexual intercourse during a period of cleanliness from menstruation. It is also forbidden to divorce her three times on the same occasion. But hardly any divorcing husband pauses to consider whether the time is right for him to divorce. The majority of people tend to think that unless they pronounce the word of divorce three times, the divorce is not valid. They thus hasten to utter something which Allah has forbidden. They earn his displeasure and land themselves in trouble. When the Prophet was told that a man divorced his wife three times together, he was very angry. He said to his companions: "Is Allah's book to be taken lightly when I am still alive among you?" (Related by An-Nassaie). Abdullah ibn Abbas reports that Rukana ibn Abd Yazeed divorced his wife three times on the same occasion, and he was very sad for having done so. The Prophet asked him: "How have you divorced her?" He answered: I have divorced her thrice. The Prophet asked: "On the same occasion?" When the man answered in the affirmative, the Prophet said: "That is a single divorce. You may remarry her if you wish." The Islamic system does not allow for conditional divorce. Thus, if someone says to his wife, "you are divorced in three months time, or at the end of the year, or when I have arrived at my office, etc." she continues to be his wife at the end of the period he has specified or on his arrival at his office. This is simply unacceptable as a way of divorce. Many prominent scholars are of the view that a conditional divorce is not valid. The family law of Egypt which has been based on the Islamic law, does not recognize such a divorce. I am more inclined to the ruling given by Imam ibn Taimiyah, that a conditional divorce is considered on the basis of the circumstances of each case. When a man tells his wife that she is divorced if she does something he specifies, then he will have to answer a simple question: would he prefer to see his marriage terminated rather than see his wife do what he told her not to do? Or was he simply using the threat of divorce in order to frighten her into obeying his instructions? If he says that his statement was only meant as a warning, then no divorce takes place as a result of her disobedience. On the other hand, if he insists that he meant his statement as divorce, because he would rather divorce her than see her doing what she did, then that is a divorce. In this latter case, the man has clearly meant his words to be a divorce. Hence, the divorce takes place. This means that each case is treated on its merits and according to the intention of the husband. [If we apply this rule to the case in question, the husband should judge his intentions at the time he wrote the note and come to his own conclusion.]

Our Dialogue ( Source : Arab News - Jeddah )