What is the legal nature of a separation chosen by a freed female slave (*Mu'taqah*)?
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
When a female slave chooses separation after manumission, the ruling is that of annulment (*Faskh*), not divorce (*Talaq*). This view is held by Abu Hanifa, Ath-Thawri, Al-Hasan ibn Hayy, and Ash-Shafi'i. The evidence supporting this is the Hadith stating, "Divorce belongs to the one who takes the shin," indicating divorce is reserved for the husband. Furthermore, since this separation originates from the wife's side, it constitutes an annulment, similar to cases where a difference in religious faith occurs or where the wife breastfeeds someone who invalidates the marriage through suckling. Therefore, if she states, "I choose myself," or "I annul the marriage," the marriage is annulled.
Supporting text
Malik, Al-Awza'i, and Al-Layth maintain that it is an irrevocable divorce (*Talaq Ba'in*). Malik specified that if she declares divorce three times, it counts as three divorces. Their evidence rests on the account of Zubra who divorced herself three times, and no companion is reported to have refuted this act, arguing that since she possesses the right of separation, she possesses the right of divorce, analogous to the husband. However, the action of Zubra is not considered binding evidence, nor is its circulation among the Companions proven.