First: Conditions for divorce related to the divorced person
1- To be husband
Divorce is not valid without the woman's husband, and the husband is the one in which the husband is connected with the woman he wants to divorce with a valid legal marriage contract.
2- To be sane
The divorce of the insane and the insane is not valid, according to the consensus of the jurists, due to the lack of capacity for the insane and the lack of eligibility, when the imbecile, it resembles the little one, who did not report; So divorce does not occur from them, but the person who has madness is not applied;his divorce takes place in the event of his recovery; because he is considered fully eligibility,It does not fall in a state of insanity, and jurists attached some cases to the insane; like:
sleeper
and passed out
and astonished
He is the one who often makes mistakes in his statements about his habit during anger
- Mubarsim
It is a disease that affects the brain, divorce does not take place in these cases
The drunk
If drunk under compulsion or with the intention of necessary treatment in some cases, or because he did not know that the one who drank it was an intoxicant, so his divorce does not take place according to the agreement of the jurists, because he is out of his mind like a madman, and that is if drunkenness affects his mind, but if drunkenness does not affect his mind, divorce takes place.
And if the person gets drunk at his will
without need and without coercion, so his divorce takes place; as a punishment for what he did; It is the doctrine of the majority of jurists
3- He must be an adult
It is not valid to divorce from the young, whether he was distinguished or not; because divorce is a harm that the child cannot bear, and divorce does not occur from the guardian of the child either, but the Hanbalis went on to say that divorce occurred from the discerning boy; If he knows the meaning of divorce and the ensuing rights of both parties.
4- To be intentionally chosen
That the divorced intends for the occurrence of divorce with his words, so the divorce of a jurist who utters it to teach people does not take place, or someone who repeats it to tell a story without intending to divorce his wife.
5- A foreigner who has learned the pronunciation of divorce does not take place
without realizing its meaning,
6 - Divorce takes place in the event of ridicule, mockery and play between the spouses
By uttering the word divorce unintentionally, its true meaning, because there is no play or mockery in the issue of divorce, so it is achieved that it falls for rebuke, and for not returning to this wasting and playing, but the one who makes a mistake in speaking utters the word divorce, his divorce does not take place; Because he did not intend to divorce
The Divorce conditions related to the divorced woman
1 -That the marriage be verified in fact or in the case of divorce
2 - That the divorced woman be a wife
3 - Or that the divorced woman is in the waiting period for a revocable divorce
But if the divorced woman was in an irrevocable divorce and he divorced her again while she was in the waiting period, his divorce does not take place, because he does not have guardianship over her in a minor irrevocable divorce.
2- The divorcer appoints the divorced woman and appoints her by referring to her, or by pronouncing an adjective in it, or by intention, and if he did it all, divorce took place, according to the agreement of the jurists. He used to say, pointing to her: O Zainab, you are divorced. Even if he referred to one of his wives, and he did not utter a description of it with his intention to divorce it, then the divorce took place, even if he described it without referring to it and did not intend anything else; The divorce took place.
To be his wife with the right contract; If he contracted with an iddah woman, or a contract with his wife's sister, or other invalid contracts; it does not fall, to divorce Because the woman is not considered his wife because the contract is invalid.
The Terms of divorce related to the formula
1 - That the wording of divorce be a word indicating divorce explicitly or a metaphor; divorce does not occur by the husband; Like someone who takes his wife out of her house to her family's house, He pays her the back of her dowry and sends her goods; Divorce does not occur with all of these even if he intended to divorce her, he must utter the word of divorce until it takes place.
2- The intention alone is not valid for divorce to take place, and if the husband doubts whether he has divorced or not; divorce does not take place; Because doubt does not result in a legal ruling, the legal ruling is only achieved when there is complete certainty and conjecture that what is meant by the term is divorce and nothing else, according to the majority of jurists.
3- And the divorce takes place with the explicit expression without intention, as for the divorce with the implicit expression; that is, the expression that may mean divorce and other things, such as the husband saying: I let you go, or I separated from you, or go to your family's house, and other expressions; the husband must have the intention of divorce in order for the divorce to be achieved and proven.
4- The divorce takes place in writing if the writing is clear and elaborately drawn, and if the husband does not intend to divorce, if the writing is not clear; Divorce does not take place even if the husband intends to divorce her and this is the view of the majority of scholars, the Hanafis, Malikis, Hanbalis, and Shafi’is hold the view that divorce does not take place from the husband if he did not intend by his writing to divorce, and the occurrence of divorce by writing if the husband intended to do so.
5 - Divorce by reference; So the majority of jurists went to say that divorce does not take place by referring to the person who is able to speak, and the Malikis went to say that divorce takes place by the sign of the person who is able to speak, provided that the sign is clear in its indication of divorce, If the sign is not clear, then the divorce does not count as the utterance being intended, If the husband divorces his wife unintentionally, like someone who wanted to utter a word but made a mistake and uttered the word divorce; the divorce does not take place between him and God, but in the judiciary it takes place, because the judge does not know the intention of the husband when he uttered the word of divorce.
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