Divorcing a woman who is not a wife is invalid

14-1-2014 | IslamWeb

Question:

Once I was very angry and swore by divorce that my fiancée must not visit her relatives. I now regret this and I want to expiate my oath so that she can visit them. What should I do? May Allaah Reward you.

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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, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.

First of all, you have to know that swearing by divorce is a serious matter as it leads to dispraised consequences such as divorcing the wife. So, our advice to you is to beware of that.

Concerning the oath of divorce you swore to your fiancée, this depends on her status. If the woman is merely a fiancée and you did not conclude the marital contract, divorce is not effected in this case, since she is not your wife and divorcing other than a wife is invalid. In a Hadeeth, the Prophet, sallallaahu ‘alayhi wa sallam, said: “The son of Aadam has no right to vow what he does not possess, to emancipate whom he does not possess or to divorce whom he is not married to.” [At-Tirmithi; At-Tirmithi: Hasan Saheeh]

In this case, you are not asked to do anything if the oath is broken.

On the other hand, if the marital contract is concluded, this oath is a conditional divorce. Thereupon, divorce is effected according to the opinion of the majority of scholars. Shaykhul-Islam, Ibn Taymiyyah and those who follow his opinion, however, are of the view that you are only asked to make the expiation of the ordinary oath if you merely swore to prevent her from going there, not to actually divorce her.

Whatever the case may be, we advise you to refer such matters to the Sharee‘ah courts.

Allaah Knows best.