Upon the manumission of a wife previously enslaved, is the option to separate immediate or subject to delay?

Chapter on Marriage of Polytheists

Al-Mughni

Book of Marriage

Book 35 · Issue 2 · Bab 3

Open in Qurani

Primary text

The option granted to the manumitted woman is subject to delay (ala al-tarrukhi), unless two conditions are met: the manumission of her husband or his consummation of the marriage with her. Those who hold the view that the option is subject to delay include Malik, Al-Awza'i, and it is narrated concerning Abdullah ibn Umar and his sister Hafsa. Sulayman ibn Yasar, Nafi', Al-Zuhri, and Qatadah also held this view, and some scholars attributed it to the Seven Jurists of Medina. The evidence supporting this is the narration in Al-Musnad by Imam Ahmad, based on the report from Al-Hasan ibn Amr ibn Umayyah, stating that the Prophet (PBUH) said: 'When the female slave is freed, she has the option, so long as he has not consummated with her; if she wills, she separates from him, and if he consummates, she has no option.' Furthermore, the narration by Abu Dawud concerning Barirah, whose choice was confirmed by the Prophet (PBUH) with the condition that if her husband approached her, she would have no choice. This is also supported by the consensus of the named Companions, with no known dissenters in their era.

Supporting text

Abu Hanifa and the rest of the jurists of Iraq hold that she has the option immediately, within the session (majlis) of learning of her freedom. Al-Shafi'i has three opinions: the most apparent aligns with the view that it is subject to delay; the second holds it is immediate, like the option in pre-emption (shufa'ah); and the third states the option lasts for three days.