take effect. Likewise, if he says, “If I marry you, you are divorced,” it does not take effect, for Allah says in the Quran:
“O you who have believed, when you marry believing women and then divorce them...” [al-Ahzab: 49]
The word “then” denotes sequence, and divorce without a marriage contract is inconceivable. How can it be a divorce when he has not married her?
If someone were to say: It is well known in the madhhab of Imam Ahmad that if a man says to a slave, “If I come to own you, you are free,” and then he comes to own him, the slave is emancipated—unlike the case where he says, “If I marry you, you are divorced.”
They replied: The difference between the two, as mentioned previously, is that purchasing a slave may be intended for the purpose of emancipation, whereas marrying a woman is not intended for the purpose of divorce. Thus, purchasing a slave for emancipation is a purpose recognized by the Sacred Law, so it is valid to make emancipation conditional upon it. Hence, if someone is required to free a slave and has money but does not own a slave, the means of freeing one is to purchase one. Marriage, however, is not intended for divorce. This is why a tahlil marriage is invalid: the muhallil does not marry her for marital relations, but rather in order to divorce her. This, then, is the difference between them, and it is a sound and clear distinction.
If a man marries a woman without witnesses and then divorces her, then—if we hold that the presence of witnesses is a condition for the validity of the marriage—the divorce does not take effect, because the marriage itself was not valid in the first place. If a man marries a woman during her waiting period and then divorces her, the divorce is invalid, because he is not her husband; a marriage contract concluded during the waiting period is invalid. Likewise, if he marries her in a shighar marriage and then divorces her, the divorce is invalid because the contract is invalid and she is not his wife. By saying that the divorce is invalid, we do not mean that they are not to be separated, for she was never his wife in the first place; rather, she is legally considered—