Divorce conditional or not
29-3-2016 | IslamWeb
Question:
Assalaamu alaykum. I have a question. There is a sister who lives with her family in a foreign country, and she is suffering because she misses her home town and is mentally ill as well. One day, she had a dispute with her husband, and he said "There are only two options: either you stay with your family or divorce," or maybe he only said, "Either you stay with your family or divorce," but he says that he said the first version. He says that he did not intend divorce and that he was only upset. Now she is in her home country in order to treat her illness, and she wants to return as soon as possible to her husband and children. At first, she did not want to return, but now she does. Is this 'talaq muallaq'; what the husband said to her? Please help. May Allaah bless you.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad 
is His slave and Messenger.
When a husband says to his wife, "There are only two options..." then this can have two possible interpretations:
Firstly, it could mean that the wife is given the choice to have a divorce or not; she is the one to decide in this regard as whether to stay with the family or get a divorce. The Kuwaiti Encyclopedia of Fiqh reads, "The jurists consider the term 'choose' one of the valid expressions of giving the wife the authority of divorcing herself ... The scholars agreed that it is allowable for the husband to give the wife the authority to divorce herself."
The scholarly view adopted at Islamweb is the view of the Shaafiʻis; that the choice in this case is restricted to the very session in which the choice was given to the wife; once the session ends and the wife did not choose the divorce, it does not take effect afterwards even if she explicitly declared her choice to have a divorce after the end of the session or went to her parents willfully, choosing divorce.
If the wife chooses not to stay with her family in the very session in which she was granted the choice, then she had chosen divorce. If she left the house in the same session and went to her parents' house, then divorce takes effect even if she said that she did not intend to choose divorce by leaving the house. The scholars held that when a woman is granted the choice of divorce and she does whatever indicates choosing divorce such as leaving the house and taking her clothes, then this is interpreted to indicate that divorce takes effect and her claim that she did not intend to choose divorce is unacceptable. The scholarly view adopted at Islamweb is that if the woman given the choice of divorce chooses divorce, it counts as a revocable divorce if it was the first or second occurrence of divorce. It is permissible for the husband to revoke the divorce and take her back in marriage as long as her ʻiddah (post-divorce waiting period) has not expired.
Secondly, the choice in this context was for the husband and not the wife. This is not an explicit formula of divorce because it could possibly be a mere promise of divorce in the case that she refused to stay with her family; he could have meant, 'Either you stay with your family or I will divorce you.' It is well-known that a promise of divorce does not count as a divorce. Please, refer to fatwa 300205. Shaykhul-Islam Ibn Taymiyyah 
was asked, "If a man said to his wife, 'I do not want you in my house; go to your family. I will divorce you,' while intending to issue a divorce, can he revoke the divorce and take her back in marriage with a new dower?" He answered:
"A promise of divorce does not count as divorce even if expressed in many formulas, and the husband is not obliged to fulfill this promise, and it is not recommended to fulfill such a promise. However, if the husband intended to issue a divorce when uttering this formula, such as by saying, 'Go to your mother's,' while intending to issue a divorce and not a mere promise of divorce in the future, then in such case, divorce takes effect. It counts as one occurrence of divorce if he did not intend to issue more than one occurrence of divorce. The husband has the right to revoke the divorce and take her back in marriage without her consent and without the presence of her wali (guardian) or a new dower..."
Hence, if the husband did not intend issuing a conditional divorce, then divorce does not take effect and she is still his wife.
Allaah knows best.