What is the legal difference between "[It is] Haram and divorce that you do not do such-and-such" and "Upon me be haram and divorce that you do not do such-and-such"?
Between the phrases " and divorce" and "upon me be haram and divorce" there are points of agreement and difference. They agree in the impermissibility of swearing by them, and they may be intended either to dissolve the marriage bond or merely as a threat. The intent of swearing by "haram" in both cases depends on the swearer's intention: if divorce is intended, then it is a divorce; if ẓihār (a type of divorce) is intended, then it is ẓihār; and if an oath by Allah is intended or nothing specific is intended, then an expiation for an oath (kaffārat yamīn) is required. As for swearing by divorce, according to the majority of scholars, it dissolves the marriage bond. However, Sheikh al-Islam Ibn Taymiyyah held that an expiation for an oath is required if divorce was not intended. The difference lies in the fact that the phrase "haram and divorce that you do not do such-and-such," without attributing it to the wife, has been considered by some scholars as explicitly stated (musnad), and by others as an ambiguous statement (kināyah). Consequently, there is no difference between the two phrases except in terms of their validity or invalidity according to those who consider the phrase that does not attribute the prohibition and divorce to the wife to be in the category of kināyah.
Summary from Ftawy's records · added here
Reviewed by El Fatwa's sharia committee.
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