What is the ruling regarding the reactivation of a conditional divorce if the separation was less than a final three pronouncements, and the condition was met during the separation period?
General Chapter
Al-Mughni
Book of Khul' (Redemption Divorce)
Primary text
If the husband separated from his wife by less than three pronouncements, and the condition was met during this separation, their opinion is that the oath (condition) is dissolved. This is because the condition was met at a time when the divorce could not take effect (due to the separation), thus the oath lapses. If the oath lapses once, it cannot return except through a new contract. The evidence supporting reactivation is that the condition's contract and its actualization occurred within a valid marriage context, hence it takes effect, similar to if no separation had occurred, or if the separation was less than three divorces according to Malik and Abu Hanifa, and the condition did not occur then. They refute the argument that this is a divorce prior to marriage by citing the case where the three divorces were not completed.
Supporting text
Malik, the proponents of the Raisonné School (Ashab ar-Ra'y), and one opinion of Al-Shafi'i hold that if the separation was less than three, and the condition was *not* met during the separation, the oath does not dissolve. Conversely, Al-Muzani and Abu Ishaq choose the opinion that the condition never returns under any circumstance because the condition's realization occurred before the marriage contract, analogous to conditionally divorcing a stranger who is later married by the pronouncer, where no divorce occurs. They argue that the oath dissolving when the condition is met during separation is because the oath's dissolution requires the condition to result in true repudiation (Hinth), which does not happen during a period of irrevocable separation.