Allah.” It is well known that someone who swears by divorce or emancipation does not seek divorce, nor does he intend emancipation as an act of devotion; rather, he is using them to swear an oath.

As for an oath involving divorce, some have held that it requires expiation, while others have held that it requires none. This second position is that of Dāwūd and his followers. The Shia hold that divorce does not take effect through it and that no expiation is required. This is a weak position, although the position that divorce takes effect without expiation is also weak—and weaker still. The requirement of expiation is what has been transmitted from Tāwūs and others, and it follows from the statements of the Companions. A number of Mālikī muftis and others have issued fatwas to this effect.

There is no doubt that there are stronger grounds for holding that divorce does not take effect than for holding that emancipation does not take effect. Thus, if the Companions ruled that emancipation does not take effect, this applies all the more to divorce. However, no report concerning divorce had reached Abū Thawr, so he said: “Analogy dictates that divorce likewise does not take effect, unless there is a scholarly consensus on the matter, in which case that has greater claim to be followed.”

If, however, someone says, “If I do such-and-such, I must free my slave or divorce my wife, my wealth shall be given in charity, and I must perform Hajj, or I must fast for such-and-such a period,” or something similar, then expiation for an oath suffices according to the schools of Ahmad and al-Shāfiʿī. This is also one of the two positions reported from Abū Hanīfa—the report transmitted by Muhammad—and it is said that Abū Hanīfa adopted this position in the end. It is also the position of a group of Mālik’s followers, and it is what has generally been transmitted from the Companions and Successors. The jurists call this “a vow of obstinacy and anger.”

This applies when the act vowed is an act of devotion, such as emancipation and the like. If it is not an act of devotion, as in the case of divorce, then nothing is required according to Abū Hanīfa, Mālik, al-Shāfiʿī, and one report from Ahmad. The well-known position reported from Ahmad, however, is that expiation for an oath is required.