the contract itself, or because the dowry was defective—in short, on account of the absence of the conditions of validity—and in all such cases she has absolutely no choice in the matter.

Annulments that arise after a sound marriage contract is in force—such as apostasy or foster-nursing—do not entail halving when neither spouse has any choice, or when the choice belongs to her alone. If, however, the option rests with him, as in the case of his apostasy, halving becomes obligatory.

The view inferred from the Ẓāhirī school is that every divorce pronounced before consummation must carry a fifty–fifty division of the bridal-due, no matter whether the cause originates with her or with him, whereas anything classed as an annulment rather than a divorce involves no division at all.

The root of the disagreement is whether this Sunnah is based on an intelligible rationale or not. Whoever holds that it is rationally grounded explains that half of the dowry is granted to her as compensation for the right she otherwise possessed to compel him to return the “merchandise” and pay the price—just as a purchaser may be forced to complete payment in a sale. Since marriage differs from sale in this respect, the Law awarded her that half in place of the lost right. Consequently, if the divorce comes about through her own action she receives nothing, for she has relinquished her ability to compel him to pay the price and take back the goods.

Those who regard the ruling as a non-rational Sunnah and adhere to the literal wording maintain that halving is required in every pre-consummation divorce, whether the cause lies with him or with her.

As for the legal effect of changes that occur to the dowry before divorce, these arise either from her action or from causes beyond human control. What comes from beyond human control falls under four possibilities: total loss, diminution, increase, or a combination of increase and diminution. What originates with her is either a disposal that alienates the dowry—such as sale, manumission, or gift—or a use confined to her personal benefit or to the items she prepares for her husband.

According to Mālik, the spouses share equally in cases of loss, increase, or diminution. Al-Shāfiʿī holds that the husband may recover from her one half of any diminution or loss, but not one half of any increase.

The basis of their disagreement is whether the woman acquires a settled ownership of the dowry before consummation or death. Those who deny that she owns it definitively say that they remain co-owners so long as she does not exceed proper limits by putting it to personal use. Those who affirm that she owns it irrevocably—and that halving merely becomes due upon divorce once ownership has settled—require her to restore everything that has left her possession. They nonetheless agree that if she has consumed it for her own benefit she is liable for half.

They also disagreed about another well-known question: if she spends the dowry on articles customarily purchased for the trousseau, does the husband recover from her half of what she bought, or half of the dowry price? Mālik says he recovers half of what she purchased; Abū Ḥanīfah and al-Shāfiʿī say he recovers half of the price, namely half of the dowry itself.

From the same topic comes a celebrated issue discussed in the transmission sessions: may a father waive half of the dowry of his virgin daughter—or a master with respect to his slave-girl—when she is divorced before consummation? Mālik allows it; Abū Ḥanīfah and al-Shāfiʿī do not.

The cause of their disagreement is the ambiguity in the Almighty’s words,

“except when they themselves forgo it, or the one in whose hand lies the knot of marriage forgoes it” (al-Baqarah 2:237),

specifically the verb yaʿfū (“forgo”), which in Arabic usage sometimes means “to waive,”