What is the ruling on divorce if a statement intended as an oath (like 'I swore by divorce') is accepted by the wife/her family?

Chapter on Explicit Divorce and Others

Al-Mughni

Book of Divorce

Book 39 · Issue 2 · Bab 2

Open in Qurani

Primary text

If the statement, uttered without an actual oath, is accepted (by the wife's family), then a single revocable divorce (bainah) is incurred, provided the wife has been consummated. If it is not accepted, nothing occurs. This is the explicit position from Ahmad, held also by Ibn Mas'ud, 'Ata, Masruq, Al-Zuhri, Makhul, Malik, and Ishaq. The basis for non-divorce when not accepted is that the statement implies a transfer of right (conveyance of the right to pronounce divorce) which requires acceptance, analogous to 'Choose' (Ikhtiyari) or 'your affair is in your hand' (Amruki biyadiki), and marriage contracts. If it is not a triple divorce upon acceptance, it is because the expression is ambiguous and should not be taken to mean three divorces when stated absolutely, similar to 'Choose'. It is revocable because it constitutes a single divorce for a woman currently observing a waiting period without compensation before the full count is reached, similar to the explicit statement, 'You are divorced.'

Supporting text

There is a narration from 'Ali (may God be pleased with him) and Al-Nakha'i: if accepted, it is one irrevocable divorce (ba'inah); if rejected, it is one revocable divorce. A narration attributed to Zayd bin Thabit and Al-Hasan states: if accepted, it is three divorces; if rejected, it is one revocable divorce, a view also reported from Ahmad. Rabi'ah, Yahya bin Sa'id, Abu Al-Zannad, and Malik state it is three divorces regardless of acceptance or rejection. Abu Hanifa and Al-Shafi'i hold the same ruling as they maintain regarding explicit ambiguous phrases (kinayat zahira), irrespective of acceptance or rejection.