Second Main Division: the Essential Elements of Divorce

This division comprises three Sections:

Section One: the verbal formulas of divorce and the conditions that govern them.
Section Two: a detailed discussion of whose pronouncement of divorce is legally valid and whose is not.
Section Three: a detailed discussion of the women upon whom divorce may take effect and those upon whom it does not.

Section One: Divorce Formulas and Their Conditions
This section is divided into two Chapters:

Chapter One: the categories of unrestricted divorce formulas.
Chapter Two: the categories of restricted (conditional) divorce formulas.

Chapter One: The Categories of Unrestricted Divorce Formulas

The Muslim jurists are unanimously agreed that divorce takes effect when it is accompanied by intention and expressed in an explicit verbal formula. They differ, however, on whether it also takes effect (i) when there is intention together with a wording that is not explicit, (ii) with intention alone and no wording, or (iii) with wording alone and no intention. Those who stipulate both intention and an explicit formula do so in deference to the manifest purport of the Sacred Law; likewise, whoever treats the outward wording as tantamount to explicitness. By contrast, those who liken divorce to a contractual act—such as vows or oaths—regard it as effected by intention alone, whereas those who give weight to the possibility of abuse deem it valid on the basis of wording alone.

The majority agree that unrestricted divorce formulas fall into two classes: explicit (ṣarīḥ) and allusive (kināyah). They differ, however, over the precise boundary between the two, the rulings that attach to each, and the legal consequences they entail. Our purpose here is simply to mention the well-known opinions and those that serve as basic principles.

Mālik and his colleagues hold that the only explicit term is the word “divorce” (ṭalāq) itself; everything else counts as an allusion. In his view, allusive expressions are of two kinds: manifest and inferred—a view shared by Abū Ḥanīfah.

Al-Shāfiʿī maintains that the explicit divorce formulas are three: ṭalāq, firāq (“separation”), and sarāḥ (“release”), for these are the expressions mentioned in the Qur’an.

Some of the literalists contend that divorce is effected only by these three terms. Such, then, is their disagreement over what constitutes an explicit formula of divorce and what does not.

All are nonetheless agreed that the word ṭalāq is explicit, because its indication of the legally defined meaning is direct and fixed by revelation, making it the standard expression in this field. As for the terms firāq and sarāḥ, their status vacillates between being adopted by the Law—so that, in juristic usage, they convey the same sense as ṭalāq—and remaining upon their purely linguistic meaning. Accordingly, when they are employed to signify divorce they function figuratively, and that is precisely what is meant by kināyah: a word whose indication is metaphorical.

Those who insist that divorce is valid only when pronounced with these three expressions maintain this because the Sacred Law came only with these three, divorce being an act of worship, and—