Question

As-salāmu ‘alaykum
Hope you are well
I had a question about conditional divorce

The situation is, a brother with Tourette’s is married to a revert. Now at the beginning when his Tourette’s was not under control, he divorced her once. They are currently together but after the first divorce he put a condition down that if she ever drinks (alcohol) then they are over. His exact words were “if you ever drink then we’re over/we’re divorce” (he can’t remember which of the two he uttered) and his firm intention with that statement was divorce. Now recently some events have come to light and they’ve had an argument whereby she’s admitted she has drunk at least once. And other issues such as infidelity have also come to light. Now is the divorce that took place, as a result of the oath, the second divorce whereby they can redo nikah and have one last chance (raj’ee) or will it be a complete final divorce whereby the last two divorces have taken place and they can’t get back together anymore (baa’in) as he had a firm intention of divorce when making the oath??
These oaths were not written down into a contract of any form and the only people present at the time were the husband and wife in question.

Please do advise further, JazaakAllah Khairan

Answer

When a husband issues a divorce that divorce can either be revocable (raj’i) or irrevocable (ba’in). Which divorce takes effect will depend on the wording of the divorce. The difference between the two types is that in a revocable divorce the husband can revoke the divorce during the waiting period (‘iddah) whereas in a irrevocable he cannot. In a revocable, if he does not revoke the divorce within the waiting period, the nikah will come to an end and they will be required to carry out a new nikah if they want to get back together again. In either case the husband will have used up one of his divorces and will only have two left. If three divorces are given then that can only be an irrevocable divorce, as a husband and wife cannot get back together again after three divorces.

ِAs for the case in question, if he used the phrase ‘we are over’ intending divorce then it will be an irrevocable divorce. Hence, if they wish to get back together again they will have to carry out a new nikah. If the phrase used was ‘you are divorced’ then it will be revocable. Hence, if he revoked the divorce during the waiting period they will be married again. If he did not revoke the divorce during the waiting period, the nikah will terminate at the end of the period and a new nikah will be required. In either case he will have one more divorce left. If he divorces her one more time they will not be permitted to get married again.

الهداية في شرح بداية المبتدي (1/ 225)
الطلاق على ضربين صريح وكناية فالصريح قوله أنت طالق ومطلقة وطلقتك فهذا يقع به الطلاق الرجعي ” لأن هذه الألفاظ تستعمل في الطلاق ولا تستعمل في غيره فكان صريحا وأنه يعقب الرجعة بالنص ” ولا يفتقر إلى النية ” لأنه صريح فيه لغلبة الاستعمال

الهداية في شرح بداية المبتدي (1/ 234)
وأما الضرب الثاني وهو الكنايات لا يقع بها الطلاق إلا بالنية أو بدلالة الحال ” لأنها غير موضوعة للطلاق بل تحتمله وغيره فلا بد من التعيين أو دلالته
…
وبقية الكنايات إذا نوى بها الطلاق كانت واحدة بائنة

Answered by:
Ifta Research Fellow

Checked & Approved by:
Mufti Abdul Rahman Mangera
Mufti Zubair Patel