Abū Thawr, Abū ʿUbayd, and a group of scholars held that the spouses are to be separated, and this view is reported from Abū Hurayrah and Saʿīd b. al-Musayyib. Abū Ḥanīfah and al-Thawrī, however, maintained that no separation takes place, and the Ẓāhirīs concur with them.

The reason for their disagreement lies in whether the harm caused by the husband’s inability to provide maintenance should be likened to the harm caused by impotence. The majority hold that an impotent husband is divorced from his wife, to the point that Ibn al-Munḏhir declared the matter a consensus. They also say that maintenance is given in return for conjugal enjoyment; the proof is that a recalcitrant wife receives no maintenance according to the majority. Thus, when the husband cannot pay maintenance, enjoyment is forfeited and the wife is granted the option.

Those who reject analogy reply that the marital bond has been affirmed by consensus and cannot be dissolved except by another consensus or by explicit evidence from the Qur’an or the Sunnah. Their dispute therefore turns on the clash between the presumption that the status quo persists and analogical reasoning.

[Section Three: The Option in the Case of Disappearance]

The jurists also differed about a missing husband whose life or death is unknown within Muslim territory. Mālik held that, once the wife brings her case to the judge, a four-year term is set. If, after diligent inquiry, his fate remains unknown, the judge confirms the term; at its expiry she observes the widow’s waiting-period of four months and ten days, after which she is free to remarry.

Mālik added: the husband’s estate is not inherited until so much time has passed that one would normally not live that long. Some set this at seventy years, others eighty, others ninety, and others one hundred for a man who vanished while still younger than those ages. This view is related from ʿUmar b. al-Khaṭṭāb and from ʿUthmān, and was adopted by al-Layth.

Al-Shāfiʿī, Abū Ḥanīfah, and al-Thawrī held that the missing man’s wife is not released until his death is verified; this opinion is transmitted from ʿAlī and Ibn Masʿūd.

The root of their disagreement is again the tension between the presumption that the existing state continues and analogy: the presumption dictates that the marital tie is not dissolved except by death or divorce, whereas analogy likens the harm she suffers through his disappearance to that caused by ilāʾ and impotence, thereby granting her the same option.

Among the Maliki analysts, the missing are of four kinds: one lost in Muslim territory—the subject of the foregoing dispute; one lost in enemy lands; one lost in battles between Muslims; and one lost in war against non-Muslims. Opinions attributed to Mālik and his companions vary widely on the last three categories.

As for a man missing in enemy territory, they treat him as a prisoner of war: his wife may not remarry, nor is his property divided, until his death is confirmed—except for Ashhab, who ruled that he is treated like one missing within Muslim territory.

With regard to someone missing in battles among Muslims, they said his case is that of one killed in action, without any delay. Another report allows for a waiting period proportionate to the remoteness of the battlefield, the maximum being one year.

As for one missing in war against the unbelievers, the school contains four opinions. One: he is treated like a captive. Two: he is treated as killed after a year’s delay—unless he disappeared in a place where his fate could not remain unknown, in which case he is treated like one missing in Muslim battles and civil strife. Three: his case is the same as that of one missing within Muslim lands.