1/ What is the ruling regarding a man of the Maliki school who said to his wife: "You are unlawful to me if I marry another woman besides you," intending by that to close the door to marrying a second wife more than intending her divorce? Does a divorce occur if he marries another woman? 2/ What is the ruling regarding a man who swore an oath of divorce that he would not commit adultery, and then he committed adultery? 3/ If a divorce occurs in either of the two aforementioned cases, is there a legitimate legal way for the man to keep his wife, knowing that she does not reside with him in the same country, and he does not want to divorce her but wishes to marry another woman to avoid committing adultery?
First: Divorce does not occur with the statement "upon me be divorce" if the intention was to restrain oneself, and in this case, an expiation for a broken oath (kaffarat ) is due if he marries another. However, if the intention was to actually effect a divorce, then it occurs.
Second: It is advised to repent from zina (unlawful sexual intercourse) and to marry to protect oneself from sin. He must strive to have his wife live with him; if that is not possible, then he may marry another, and upon him is an expiation for a broken oath, which is feeding ten needy persons, or clothing them, or freeing a slave, or fasting for three days.
Summary from Ftawy's records · added here
Reviewed by El Fatwa's sharia committee.
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