Does divorce take place, or is an expiatory oath (kaffarat yamin) required of a husband who said to his wife, "By divorce, you will not sleep in the apartment tonight; go to your mother's house," if the wife sleeps in the apartment, knowing that the husband did not intend divorce but rather to discipline her?
The majority of scholars hold that if a person swears by divorce and then breaks that oath, his wife is divorced, whether he intended the divorce to occur or merely intended to threaten. Whereas, Sheikh Al-Islam Ibn Taymiyyah is of the opinion that a person who swears by divorce for the purpose of threat must offer an expiation for an oath and his divorce does not take effect. The relied-upon for us is the opinion of the majority. Therefore, divorce occurs with the wife spending the night in the apartment. If this pronouncement of divorce does not complete the three divorces, then the wife can be taken back during her ' (waiting period). The lawful oath is by Allah Almighty, and swearing by divorce is among the oaths of the dissolute and has grave consequences.
Summary from Ftawy's records · added here
Reviewed by El Fatwa's sharia committee.
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