Does a conditional divorce obligation reactivate upon remarriage if the condition was met while the divorce was conditional, but the wife was subsequently divorced (non-revocably or revocably) before the condition was met in the second marriage?

General Chapter

Al-Mughni

Book of Khul' (Redemption Divorce)

Book 38 · Issue 1 · Bab 1

Open in Qurani

Primary text

If a husband conditionally divorces his wife (e.g., 'You are divorced if you speak to your father'), separates from her via Khul' or divorce, and then remarries her, the condition, if met during the second marriage, results in a divorce. Ahmad bin Hanbal affirmed this ruling specifically concerning a conditional divorce that was followed by a revocable separation (or Khul') and subsequent remarriage. If the condition was met during the period of separation (Baynunah), and the husband remarried her, the apparent position of the Madhhab is that the condition will cause a divorce upon being met again in the new marriage. However, a narration from Ahmad suggests the condition does not reactivate in this case, drawing an analogy from manumission (A'taq). If a man says to his slave, 'You are free if you enter the house,' sells him, and then buys him back; if the slave entered the house before the sale, he is not freed upon the repurchase if the condition was met before the sale. This analogy suggests the condition should not reactivate in divorce either, especially since manumission is favored by Shari'ah. Al-Kharqi chose this opinion, stating if one says, 'If you marry so-and-so, you are divorced,' she is not divorced if he marries her, implying the condition must be original to the current marriage bond.

Supporting text

The majority of scholars, including Malik, Abu Hanifa, and one narration from Al-Shafi'i, hold that the condition does not reactivate if the husband issued a final divorce (three pronouncements) before remarriage, even if the condition was not met during the separation period. Ibn Al-Mundhir noted the consensus among known scholars that if a wife is divorced three times conditionally (e.g., 'Divorced three times if you enter the house'), and the husband remarries her after she marries another, the condition causing the triple divorce will not take effect upon her entering the house in the second marriage. This is based on the principle that releasing ownership implies the dissolution of the conditional obligation.