What Are The Husband's Obligations Towards His Children And His Ex-wife Who Has Custody Of Them?
Islamic Rulings -
Living Shariah Verdicts
Islamic Questions & Answers
My husband issued a conditional divorce four years ago, but I cannot remember
exactly what he said. I tried to remember, but to no avail, as he said to me: If
you do such and such, then you are divorced. When I asked my husband, he said
that he did not remember what he had stipulated either. I am afraid that the
condition he stipulated in that conditional divorce may have been fulfilled, but
by what I do not remember, and my husband does not remember either. I am very
confused about my situation, so I hope you can help me.
Praise be to Allah
If someone makes divorce conditional upon something, such as if he says: "If you
visit So-and-so, then you are divorced," then divorce takes place when the
condition stipulated is fulfilled, according to the view of the majority of
fuqaha'.
Some of the scholars are of the view that if he intended thereby to threaten
her, urge her to do something or prevent her from doing something, then it comes
under the heading of an oath (yameen), for which expiation (kafaarah) is
required. This is the view favoured by Shaykh al-Islam Ibn Taymiyah and a number
of other scholars, and it is the basis for fatwas on this website.
Based on that, if your husband said that he did not remember the action
stipulated, but he did not intend to issue a divorce – rather he merely intended
to prevent you from doing something – then he should offer expiation for his
oath, so as to be on the safe side.
If he says that he did intend to issue a divorce, but he forgot what the
condition was, then there is no blame on you for doing whatever you want of
permissible things, and no divorce will take place, because the basic principle
is that the marriage remains valid, and no divorce occurs when there is doubt.
Al-Majd Ibn Taymiyah (may Allah have mercy on him) said in al-Muharrar (2/60):
If there is any doubt concerning divorce or the conditions stipulated for it to
occur, then what matters is the certainty that the marriage remains valid. End
quote.
al-Baghawi (may Allah have mercy on him) said in at-Tahdheeb (6/104): If a man
is uncertain as to whether he has actually divorced his wife, he should assume
that it has not happened, because the basic principle is that the marriage
remains valid. The same applies if he is uncertain about the number of divorces:
he should assume that it is the lower number, because that is what is certain.
End quote.
And Allah knows best.
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