What is the consequence of intercourse or death on an unspecified wife when divorce is declared ambiguously?
Chapter on Divorce by Calculation
Al-Mughni
Book of Divorce
Primary text
If the husband says, "This one is divorced or this one," and does not specify, intercourse with either does not constitute specification (ta'yeen). Similarly, if one of the potentially divorced wives dies, the divorce does not automatically fall upon the survivor. Intercourse or death does not eliminate the possibility that the other was the one actually divorced, and therefore does not establish certainty for the other. Thus, he cannot have intercourse with the other wife until the identity is determined.
Supporting text
Abu Hanifa held that the divorce becomes confirmed upon the survivor because the other died before her divorce was established. The supporting argument here is that the right to inheritance is divided among all of them because they equally carry the potential for entitlement, and the right cannot be removed from them entirely. Conversely, the sounder position maintains that the death or intercourse does not negate the probability that the other was the one divorced, meaning certainty is not established for the other, just as in cases of illness.