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The question

Is a husband's statement: "I swear by divorce that such and such will not happen" considered a divorce if the thing he swore by does happen?

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Source: FtawySummarized from the full answer at Ftawy · imported Sep 2, 20261 min readAlso available in العربية
The answer

If a man swears an oath of divorce regarding an action or its omission, or its occurrence or non-occurrence, and then what he swore against comes to pass, his wife is divorced, whether he intended divorce or not. If his oath of divorce and the occurrence of what he swore against are repeated, his wife is divorced by the first oath. If he does not take her back before her iddah (waiting period) expires, she becomes irrevocably divorced (minor irreversible divorce), and he can marry her again with a new contract, mahr (dowry), wali (guardian), and two witnesses. If he takes her back, then divorces her, then takes her back, then divorces her, she becomes irrevocably divorced (major irreversible divorce), and she is not lawful for him until she marries another man and he consummates the marriage with her, and then divorces her, on condition that this is not a pre-arranged تحليل (halala) marriage.

Reconciliation (rajah) is achieved by an explicit statement, such as "I take you back" or "I return you to my marriage," which does not require intention. It can also be achieved by an ambiguous statement that could mean reconciliation or something else, and this requires intention. As for actions, the Hanafis and Malikis (with the condition of intention for the Malikis) held that sexual intercourse and its preliminaries achieve reconciliation. The Shafiis held that reconciliation by action is never valid. The Hanbalis held that reconciliation is achieved by sexual intercourse even if there is no intention, and they differed on whether reconciliation is achieved by the preliminaries to sexual intercourse; the relied-upon view among them is that it is not achieved by them.

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Ftawy
Original fatwa ID
46699
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