Does a divorce occur when the husband says to his wife: "I swear by divorce" or "You are not binding upon me," or by threatening to leave her, knowing that the wife is still in her father's house and the husband is abroad, and should she obey her father or her husband?
The wife is obligated to obey her father before consummation (Dukhul), and to obey her husband after consummation, as long as it is within what is recognized as good. If the husband divorces his wife with an explicit or implicit (kinayah) divorce, with the intention of divorce, before consummation, then a minor irrevocable divorce (baynunah sughra) has occurred, and she is not lawful for him except with a new contract. In this case, the divorce contingent on her leaving does not take effect because it did not coincide with a valid marital bond (mahall). However, if the divorce was made contingent on her leaving, and it was not preceded by a divorce, and she left in obedience to her father, then divorce has occurred according to the majority of scholars. As for his oath that he will leave her, it does not necessitate a divorce, but if he divorces her, he fulfills his oath. If divorce is not possible, he must pay expiation (). The summary is that the wife is irrevocably divorced from her husband with a minor irrevocable divorce (baynunah sughra), and she is not lawful for him except with a new contract.
Summary from Ftawy's records · added here
Reviewed by El Fatwa's sharia committee.
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- Original fatwa ID
- 112489
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- Text
- Summary from Ftawy's records, reviewed by El Fatwa's sharia committee.
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