Setting condition for divorce followed by exception

Question

I told my wife that she was divorced if she went to her parents house. Then suddenly I realized what I was saying, so I added to my words by saying, “If you go without my permission,” so which condition will apply for divorce? It will be consider one divorce if she goes with, or without my permission? Kindly explain this to me.

Answer

All perfect praise be to Allah, The Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad  is His slave and Messenger.

What you first mentioned is a conditional divorce on your wife if she goes to her parents’ house, and what you mentioned after that is an exception.

This exception is of no consideration unless it is connected to the oath, unless it was not connected because of an impediment that could not be avoided, such as a cough or being out of breath, for example.

Ibn Qudaamah  said in Al-Mughni:

“It is a condition that the exception be connected to the oath such that no irrelevant words are spoken between them and one does not keep silent between the oath and the exception for a time period during which he can speak. As regards keeping silent due to being out of breath, or loss of voice, or weakness, or an obstacle such as sneezing or something else, then this does not prevent the validity of the exception and the confirmation of its ruling. This is the view of Maalik and Ash-Shaafi'i.”

Based on this, if the exception was connected to the oath, then there is no breaking of the oath if your wife goes with your permission, and if it is not connected, then the breaking of the oath takes place by her going regardless of whether you gave her permission.

Divorce takes place when the condition upon which you conditioned the divorce occurs according to view of the majority of the jurists. However, according to Shaykh Ibn Taymiyyah  divorce does not take place unless the husband intended it. So if your intention was only to threaten her and the like (and not to actually divorce her), then you are obliged to expiate for breaking an oath.

The view that we adopt here at Islamweb is that of the majority of the scholars.

Finally, we would like to point out the following matters:

1- Intention in oaths is considered. If by the condition you set, you intended your wife going without your permission, then divorce does not take place if you gave her permission, regardless of whether you verbally uttered that intention.

2- You should avoid uttering the word divorce as much as possible and strive to solve the problems by any other lawful means.

3- The condition becomes non-effective after going the first time [i.e. if she goes more than once, it is only one time that is considered as breaking your oath/condition], so divorce is not repeated by the repetition of breaking the oath unless you had intended that.

Allah knows best.

-islamweb.net