First: Regarding the adopted rules (Mutabanna), only what is mentioned in The Social System is adopted. As for its branches, such as when triple divorce occurs, these are not adopted and can be taken from any recognized Mujtahid.
The following is what I consider to be the preponderant (Rajih) opinion regarding the issue of triple divorce occurring with a single utterance in one sitting:
A - If a man says to his wife, "You are divorced three times," while he is sane and understands what he is saying—meaning he knows the meaning of these words (and is not, for example, a non-Arab who is prompted with the words without knowing their meaning)—then this divorce counts as three. This is the case whether he intended in his heart for it to be one or did not intend anything at all. This is because the indication of the explicit and clear wording (Sarih) in this statement ("You are divorced three times") does not require intention (Niyyah) for the divorce to take place. I have mentioned the evidence for this in my book, At-Taysir fi Usul at-Tafsir, regarding the verse:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ
"And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him." (Surah Al-Baqarah [2]: 230)
I am attaching some of what pertains to this from my aforementioned book (pp. 203 to 205):
[Allah (swt) explains in this noble verse that whoever divorces his wife for the third time—meaning he has exceeded the permitted limit:
الطَّلَاقُ مَرَّتَانِ
"Divorce is twice." (Surah Al-Baqarah [2]: 229)
—then his wife is separated from him by major irrevocability (Baynunah Kubra). This means it is not permissible for him to take her back during her waiting period (Iddah), nor is it permissible for him to marry her with a new contract and dowry. Rather, it is forbidden for him unless she marries another husband. Then, if the new husband divorces her, it becomes permissible for the first husband to propose to her and marry her with a contract and dowry, as she would be like any other woman foreign to him.
Here, the question arises: Does major irrevocability occur through three separate divorces one after another, or can it occur through triple divorce in a single word?
This is an issue over which the jurists (Fuqaha) have differed and engaged in lengthy debate. Upon careful examination of it, I say—and with Allah is the success:
There is no difference between the divorce being three separate times or joined together. The ruling (major irrevocability) applies to the divorce whether it is pronounced with the word "three" all at once or one after another. The evidence for this is:
- The saying of Allah (swt):
الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ
"Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment." (Surah Al-Baqarah [2]: 229)
...until He (swt) says:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ
"And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him." (Surah Al-Baqarah [2]: 230)
The point of evidence is that Allah (swt) said "twice," meaning two divorces, without restricting them to being joined or separate. Similarly, "if he has divorced her"—meaning the third time—the verb is positive and thus absolute (Mutlaq) and unrestricted. That is: (if he divorced her the third time) whether joined with the previous two or separate from them.
Thus, the verse implies major irrevocability for triple divorce, whether it is joined or separate.
It cannot be said that a restriction has been narrated for the "times" to be separate for them to result in major irrevocability, and that if they are joined in one word, they do not result in major irrevocability but are considered a single divorce, as mentioned in some ahadith of the Messenger of Allah (saw).
This cannot be said because all these ahadith are weak (Dha'if) and do not reach the level of Hasan (good) or Sahih (authentic), except for two ahadith narrated from Ibn Abbas (ra), and they are not suitable for restriction (Taqyid) and are not acted upon, as we will explain now, by the will of Allah.
The two ahadith are:
First: The hadith of Muhammad bin Ishaq, in which he says: Dawud bin al-Husayn narrated to me from Ikrimah from Ibn Abbas: "Rukana divorced his wife in one sitting three times and was grieved for her. So the Messenger of Allah (saw) said to him: 'It is only one.'" Narrated by Imam Ahmad in his Musnad.
Second: The hadith of Tawus that Abu al-Sahba said to Ibn Abbas: "Do you know that the three were made one during the time of the Prophet (saw) and Abu Bakr, and for three years of the leadership of Umar?" Ibn Abbas said: "Yes."
No Sahih or Hasan hadith has been narrated from anyone other than Ibn Abbas stating that the three joined are considered one. However, this consideration is outweighed (Marjuh) because the authentic fatwas of Ibn Abbas established from him consider that triple divorce with one word counts as three and results in major irrevocability. I mention below a number of these fatwas:
Abdullah bin Kathir narrated from Mujahid who said: I was with Ibn Abbas when a man came to him and said that he had divorced his wife three times. He said: He (Ibn Abbas) remained silent until I thought he would return her to him, then he said: "One of you goes and commits a folly and then says: O Ibn Abbas, O Ibn Abbas!!... Allah said: 'And whoever fears Allah - He will make for him a way out,' and you did not fear Allah, so I find no way out for you. You disobeyed your Lord and your wife is separated from you." And Allah said: "O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period," meaning at the start of their waiting period. Thus, Ibn Abbas considered the triple divorce together as occurring and resulting in major irrevocability.
A similar report was narrated by Humaid al-A'raj and others from Mujahid from Ibn Abbas.
Shu'bah narrated from Amr bin Murrah, Ayyub, and Ibn Jurayj, all from Ikrimah bin Khalid from Sa'id bin Jubayr from Ibn Abbas.
Ibn Jurayj from Abdul Hamid bin Rafi' from Ata' from Ibn Abbas.
Al-A'mash from Malik bin al-Harith from Ibn Abbas.
Ibn Jurayj from Amr bin Dinar from Ibn Abbas.
All of them said regarding triple divorce that Ibn Abbas enforced it as three and said: "Your wife is separated from you."
The fame of these fatwas and their authenticity from Ibn Abbas regarding the enforcement of triple divorce makes the hadith narrated from Ibn Abbas—that the Prophet (saw) made the three into one—outweighed (Marjuh). This is because if a Companion acts contrary to what he narrated, then his narration is outweighed, and the preponderant (Rajih) view in the matter is the indication of the noble verse, considering triple divorce—whether separate or joined—as resulting in major irrevocability. Many jurists and scholars have acted upon the view that the three count as three.
Al-Bukhari said in his Sahih (Chapter: Whoever permits triple divorce due to the saying of Allah: "Divorce is twice") and mentioned the hadith of Li'an (from Sahl bin Sa'id al-Sa'idi... Sahl said: "They performed Li'an... then he divorced her three times before the Messenger of Allah (saw) ordered him." Ibn Shihab said: "That was the sunnah of those who came before.")
Al-Bayhaqi said, commenting on the hadith of Tawus from Ibn Abbas which was recorded by Muslim but not by al-Bukhari: "I think al-Bukhari left it because it contradicted all other narrations from Ibn Abbas," and he cited the narrations from him which we have explained previously.
The summary is that triple divorce, whether joined or separate, occurs and results in major irrevocability. However, there is a difference between joined triple divorce and separate triple divorce: triple divorce with one word in one sitting is decisively prohibited, meaning it is haram. Nonetheless, it counts as three as we have explained, and the one who divorces in this manner is sinful (Athim). This is based on the hadith of the Messenger of Allah (saw) narrated by Mahmoud bin Labid: "The Messenger of Allah (saw) was informed about a man who divorced his wife three times all at once. He stood up in anger and said: 'Is the Book of Allah being trifled with while I am still among you?!' until a man stood up and said: 'O Messenger of Allah, shall I kill him?'"
This is what I consider to be the preponderant (Rajih) view on this matter, and Allah knows best and is most wise.]