What constitutes an oath (Ḥalf) involving divorce (Ṭalāq) among our companions?
Chapter on Explicit Divorce and Others
Al-Mughni
Book of Divorce
Primary text
An oath involving divorce is defined as suspending divorce upon any condition, excluding the phrase "If you wish, you are divorced" (Idhā shi’ta fa-anti ṭāliq), which is considered a transfer of ownership. Furthermore, the condition "If you menstruate, you are divorced" (Idhā ḥaḍti fa-anti ṭāliq) constitutes an innovation in divorce (ṭalāq bid‘ah), while "If you become pure, you are divorced" (Idhā ṭahurtu fa-anti ṭāliq) constitutes a sunnah divorce. This view is held by Abu Hanifa because the utterance is conventionally termed an oath, thus invoking the legal consequence, similar to saying, "If you enter the house, you are divorced." The basis is that the condition carries the meaning of an oath in that it is an incomplete clause requiring an answer, resembling the phrases "Wallahi," "Billahi," and "Tallahi."
Supporting text
Alternatively, an oath involving divorce is defined as suspending divorce upon a condition intended to urge action or prevent it, such as "If you enter the house, you are divorced," or "If you do not enter, you are divorced," or upon confirming a report, like "You are divorced; Zayd has arrived or has not arrived." Conditions not serving these purposes, such as "You are divorced if the sun rises," or "if the Hajj pilgrims arrive," are deemed mere conditions, not oaths, as the essence of an oath is swearing. This latter definition aligns with the school of Shafi'i.