Is the dissolution of marriage between mutually imprecating spouses contingent upon the judge formally separating them after the mutual cursing (li'an)?
General Chapter
Al-Mughni
Book of Mutual Imprecation (Li'an)
Primary text
There are two narrations on this matter. The first holds that the separation is contingent upon the judge’s decree. This is the apparent view in the statement of Al-Khiraqi and the position of the Ashab ar-Ra'y, based on the narration of Ibn Abbas stating that the Messenger of Allah (peace be upon him) separated them, implying separation did not occur beforehand. Furthermore, the cause of this separation depends on the judge, making the resulting dissolution contingent upon the judge's ruling, similar to separation due to impotence ('ununah).
Supporting text
The second narration holds that the separation occurs immediately upon the mutual imprecation. This is the preferred view of Abu Bakr, and the position of Malik, Abu Ubayd, Abu Thawr, Dawud, and Zufar. The evidence includes the statement of 'Umar (may Allah be pleased with him) that the mutually imprecating spouses are separated and shall never reunite, and that a matter necessitating perpetual prohibition does not depend on a judge’s ruling, like fosterage (rada').