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Fatwa CenterRuling on Conditional Divorce in the Present Tense
Question
Assalamu’alaykum.A husband who is handbal in madhab divorces his shafi’iyyah wife and mentioned 3talaq in one sitting and said that it was for ta’keed. His wordings are “We divorce3x as long as you don’t hurt me physically “ he said that what he meant is that “if you still hurt me physically then we divorce “ May I ask what is the hukm for this?Will talaq take place? If yes then how many?Jaz?kumull?h khair.
Answer
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
In such matters, the husband should present the issue in person to trustworthy scholars or to the Islamic centre in the country where he resides, because answering it requires verifying the exact wording the husband used and his intention, and this can only be achieved by direct discussion between the husband and the Mufti.
As for the general ruling, we draw attention to the following points:
Pronouncing divorce by using the present tense or the future tense, such as a husband saying “I divorce you, or I am divorcing you” does not count as an actual divorce.
Al-Hajjawi
said in Al-Iqna‘ (a Hanbali book): “The explicit form of the word ‘divorce’ and any of its derivatives, except for an imperative form (a command) such as ‘Divorce!’ or the present tense such as ‘I divorce you, or I am divorcing you’, or saying the word 'muṭalliqah' with a diacritic Kasrah beneath the Lām letter (which means you are divorcing), such statements do not count as a divorce.” [End quote]
Similarly, it is mentioned in Hashiyat al-Bujayrami ‘ala Sharh al-Manhaj (a Shafi’i book): “If, instead of saying ‘You are divorced,’ he said ‘I divorce you, or I am divorcing you’ … it does not count as a divorce, because it is a promise (of divorce).” [End quote]
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said in his Majmu' al-Fatawa: “A promise of divorce does not take effect, even if repeated many times, and fulfilling this promise is neither obligatory nor recommended.” [End quote]
A conditional divorce takes effect when the condition is fulfilled, whether it was intended as an actual divorce, or as a threat, or for emphasis. Furthermore, pronouncing three divorces in one session counts as three divorces. This is the opinion of the majority of scholars, including the four Imams (
).
However, some scholars, such as Shaykh al-Islam Ibn Taymiyyah held that a conditional divorce made with the intent of threat or emphasis, and not with the intent of actually ending the marriage, does not count as a divorce, but if the condition is broken, it requires an expiation (Kaffarah) for breaking an oath. Similarly, if a single divorce is intended when pronouncing three divorces in one session, it counts as a single divorce.
Allah know best.
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