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Is it permissible to put in a no-divorce clause in a marriage contract?

Answered as per Hanafi Fiqh by Qibla.com

Answered by Shaykh Faraz Rabbani

Is it permissible to put in a no-divorce clause in a marriage contract?

Answer:
In the Name of Allah, Most Gracious, Most Merciful

In the Name of Allah, Most Merciful and Compassionate

May Allah’s peace and blessings be upon His Messenger Muhammad, his folk, companions, and followers

Walaikum assalam wa rahmatullah,

The no-divorce clause would be a promise, not a legally-significant condition.

It is not permitted to make promises unless (a) one has the firm resolve to fulfill the promise and (b) one is reasonably sure that one will, in fact, be able to fulfill it.

A contractual promise such as a no-divorce clause is religiously binding, according to the major living scholars, given that it relates to the interests and rights of another. Thus, it would normally be religiously binding for one to live up to such a contractual promise, except in genuinely extenuating circumstances—which one should seek counsel about.

However, a no-divorce clause is not legally-significant in the sense that if a divorce is pronounced after it, then this pronouncement would still count as divorce, with all its legal implications.

This is because there are a number of hadiths from the Messenger of Allah (peace and blessings be upon him) that affirm clearly that every pronouncement of divorce is effective and counts—even if sinful or of a prohibited kind. [As related by Tirmidhi, Ibn Abi Shayba, and others; Bukhari mentions it in his Sahih from the words of Sayyiduna Ali (Allah be pleased with him)]

Thus, divorce pronounced after it would still count, though it would have two reprehensible aspects: (a) breaking one’s promise and (b) pronouncing divorce. However, when there is a genuine reason to divorce then it would not be reprehensible, though one should review one’s case with a reliable scholar before even considering the pronouncement of divorce.

And Allah alone gives success.

Wassalam,
Faraz Rabbani

This answer was indexed from Qibla.com, which used to have a repository of Islamic Q&A answered by various scholars. The website is no longer in existence. It has now been transformed into a learning portal with paid Islamic course offering under the brand of Kiflayn.