Is the shafii (pre-emptor) entitled to take the share of a property if the husband divorces his wife after the shafii has claimed his right but before finalizing the taking?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
If the husband divorces the wife after the pre-emptor (shafii) has taken the share (shaqs), the pre-emptor returns half the value because the wife's ownership over that half has ceased. If the husband divorces the wife before the pre-emptor takes possession, there are two views. The primary view holds that the pre-emptor takes precedence because the right was established by the marriage contract, while the husband's right is established by the divorce. Furthermore, the husband only reverts to half the value, whereas if the pre-emptor's right is nullified, it is nullified without compensation. This view is supported by legal reasoning prioritizing the prior established right.
Supporting text
The alternative view holds that the husband takes precedence because his right is more firmly established, resting upon explicit Quranic text and consensus (ijma), whereas the right of pre-emption is subject to ijtihad (independent legal reasoning) and not universally agreed upon. Under this view, the pre-emptor may take the remaining half by paying half of what he would have paid for the whole.