Translation: Islamic Rulings and Jurisprudential Issues Regarding DivorceWritten by: Imran Ayub Lahori
❖ Divorce Before Marriage
① It is narrated from Hazrat Miswar bin Makhrama (RA) that the Prophet ﷺ said:
لا طلاق قبل نكاح
"There is no divorce before marriage."
[Hasan Sahih: Sahih Ibn Majah: 1667, Kitab al-Talaq: Bab La Talaq Qabla al-Nikah, Ibn Majah: 2048]
② It is narrated from Hazrat Ali (RA) that the Prophet ﷺ said:
لا طلاق قبل النكاح
"There is no divorce before marriage."
[Sahih: Sahih Ibn Majah: 1668 also, Ibn Majah: 2049]
③ It is narrated by Amr bin Shu’aib from his father from his grandfather that the Messenger of Allah ﷺ said:
لا طلاق فيما لا يملك
"There is no divorce regarding that which a person does not own."
[Hasan Sahih: Sahih Ibn Majah: 1666 also, Ibn Majah: 2047]
④ Imam Bukhari (رحمه الله) established a chapter titled:
لا طلاق قبل النكاح
"There is no divorce before marriage."
Under this chapter, he quoted the verse:
یٰۤاَیُّهَا الَّذِیْنَ اٰمَنُوْۤا اِذَا نَكَحْتُمُ الْمُؤْمِنٰتِ ثُمَّ طَلَّقْتُمُوْهُنَّ...
Then he cited the statement of Hazrat Ibn Abbas (رضي الله عنهما):
"Allah has prescribed divorce only after marriage."
[Bukhari: after Hadith/5268, Kitab al-Talaq]
◈ Views of Jurists on Divorce Before Marriage
- Shafi'i (رحمه الله) & Ahmad (رحمه الله): No form of divorce is valid before marriage.
- Malik (رحمه الله): If someone says regarding a specific woman, “If I marry her, she is divorced,” then divorce will take effect immediately upon marriage.
- Abu Hanifa (رحمه الله): Divorce will occur in both cases—whether the woman is specifically identified or not.
References:
[Al-Muhalla: 10/206, Al-Mabsut: 6/127, Hilyat al-Ulama: 7/8, Nayl al-Awtar: 4/335]
Preferred Opinion (Rajih):Based on the authentic narrations mentioned above, divorce is only possible after marriage, not before.
Shawkani (رحمه الله) affirmed this opinion.[Nayl al-Awtar: 4/335]
❖ Divorce Suspended on a Condition
If a man, after marrying his wife, says:
"If I see you with so-and-so, you are divorced,"
then this conditional divorce will take effect if the condition is met.
[For details, see: Al-Mughni by Ibn Qudamah: 10/452–472]
❖ Imaginary Divorce
If a person merely thinks in his heart about divorcing his wife, no divorce takes place. As narrated from Hazrat Abu Hurairah (RA), the Prophet ﷺ said:
إن الله تجاوز عن أمتى ما حدثت به أنفسها ما لم تعمل تكلم
"Indeed, Allah has forgiven my Ummah for the thoughts that occur in their hearts, as long as they do not act upon them or speak of them."
[Bukhari: 5269, Kitab al-Talaq: Bab al-Talaq fi al-Ighlaq, Muslim: 127, Abu Dawood: 2209, Tirmidhi: 1183, Ibn Majah: 2044]
❖ Divorce by a Slave
Hazrat Umar (RA) said:
ينكح العبد امرأتين ويطلق تطليقتين…
"A slave may marry two women and give two divorces..."
[Sahih: Irwa al-Ghalil: 2067, Dar Qutni: 2/242, Bayhaqi: 7/425]
❖ Taking Back the Dowry at the Time of Divorce is Impermissible
① Allah Almighty says:
وَ اِنْ اَرَدْتُّمُ اسْتِبْدَالَ زَوْجٍ...
"If you wish to replace one wife with another, even if you have given the former a great treasure (as dowry), do not take anything from it. Would you take it wrongfully and in open sin? And how can you take it when you have gone in unto each other..."
[Surah An-Nisa: 20–21]
② Another verse states:
وَ لَا یَحِلُّ لَكُمْ اَنْ تَاْخُذُوْا مِمَّاۤ اٰتَیْتُمُوْهُنَّ شَیْــٴًـا
"It is not lawful for you to take anything from what you have given them."
[Surah Al-Baqarah: 229]
