2562. A man who divorces his wife must be b¡ligh, and even though the validity of a divorce given by a ten year old child in not without merit, one should practice precaution in this case. He must also be sane, and divorce his wife of his own volition. If he is forced to divorce his wife, the divorce will be void. He should also have the intention of divorcing his wife. Hence, if he utters the formal expressions of divorce in jest, it will not be valid.
2563. The wife should be pure from the blood of ¦ay¤ and nif¡s at the time of the divorce. Her husband should not have engaged in intercourse with her during that period of purity. These two conditions will be elaborated in subsequent articles.
2564. The divorce of a woman who is in the state of ¦ay¤ or nif¡s is only valid in the following three cases:
1. Her husband has not consummated the marriage with her.
2. She is known to be pregnant. If she is not known to be pregnant, and her husband divorces her whilst she is in the state of ¦ay¤, but later finds out that she was in fact pregnant, the obligatory precaution is that he should divorce her again.
3. The man is unable to determine whether his wife is pure from the blood of ¦ay¤ or nif¡s, owing to his absence or some other reason.
2565. If a person knows his wife to be pure from the blood of ¦ay¤ and nif¡s, and therefore divorces her, but later realizes that she was in the state of ¦ay¤ or nif¡s at the time of the divorce, the divorce will not be valid.
If however he knows her to be in the state of ¦ay¤ or nif¡s, but divorces her nonetheless, and later finds out that she was not in the state of ¦ay¤ or nif¡s, the divorce will be valid.
2566. If a person knows that his wife is in the state of ¦ay¤ or nif¡s, and then he goes away from her, for example owing to a journey, but wishes to divorce her, and is unable to acquire information about her state, then he should wait until he acquires certainty or confidence that she is pure (from ¦ay¤ or nif¡s), and then he may divorce her.
2567. If a person who is not present wishes to divorce his wife, then if he is able to know whether his wife is in the state of ¦ay¤ or nif¡s or neither of them, then he should find out using any means possible such that he acquires certainty or confidence. However, if after one month of being away from her, he is unable to determine her state, he may divorce her.
2568. If a person engages in intercourse with his wife who is pure from the blood of ¦ay¤ or nif¡s, and then wishes to divorce her, he must wait until she observes the blood of ¦ay¤ once again, and is purified from it. However, if a girl who has not completed nine lunar years, or a woman who is pregnant, is divorced after intercourse, there will be no problem (in the validity of the divorce). The same will apply if she is a y¡’isah, the definition of which was elaborated in article 441.
2569. If a person engages in intercourse with his wife who is pure from the state of ¦ay¤ and nif¡s, and then divorces her during the period of purity, but later finds out that she was pregnant at the time of the divorce, the obligatory precaution is that he should divorce her again.
2570. If a person engages in intercourse with his wife who is pure from the state of ¦ay¤ and nif¡s, and then goes away from her, for example owing to a journey, then if he wishes to divorce her on the journey, and is unable to obtain any information about her state, he will have to wait for one month.
2571. If a man wishes to divorce his wife who does not menstruate, be it from birth or be it owing to another reason, then from the day he had intercourse with her, he should refrain from having intercourse with her for three months, and then he may divorce her.
2572. The divorce must be pronounced using the correct Arabic formal expressions, employing the word §¡liq, and two just persons should hear it. If the husband himself wishes to pronounce the formal expressions of divorce, and the name of his wife—for example—is F¡§imah, he must say:
زَوْجَتِي فاطِمَةُ طالِق
My wife F¡§imah is released.
If he wishes to deputize someone else, the deputy must say:
زَوْجَةُ مُوَكِّلِي فاطِمَةُ طالِق
The wife of the person whom I represent, F¡§imah, is released.
In the event that the wife has been specified, it will not be necessary to mention her name.
2573. A lady who has been contracted in a temporary marriage, for one month or one year (as an example), is not subject to divorce. She is released when the marriage period comes to an end, or the man gifts the remaining period to her, by—for example—stating, “I have gifted the marriage period to you,” It is not necessary to have witnesses, nor is it necessary for the wife to be pure from ¦ay¤ or nif¡s.
