Terms and Conditions for Divorce Ta‘liq

As stated earlier, divorce in terms of time of fall is divided into three: munajjaz, mudhaf, and mu'allaq. The munajjaz or mu‘ajjal divorce falls as the shighat is pronounced. While the mudhaf talak falls at a later time, tonight, whether tomorrow, next week, Ramadan later, or other according to the time that rests.

The mu‘allaq divorce or ta‘liq divorce is divorce which depends on the case in the future. Usually use words if, if, at any time, and the like. For example the expression of a husband to his wife, "If you enter this man's house again, you will be caught up. Or, "If I leave you for six months in a row, my divorce will fall to you."

Divorce ta‘liq is also often called majus oath. Because, in essence ta‘liq is a condition and retaliation. So, indirectly, divorce ta‘liq is majas because it contains the meaning of cause and is accompanied by an oath, with the aim of encouraging, preventing, or reinforcing words. The ta‘liq itself is sometimes in the form of lafdhi because the terms of the conditions are explicitly mentioned, as if or if; there is also a form of meaning because the words the conditions are not explicitly mentioned, such as the phrase, "You are like this, I drop divorce." This kind of expression is nothing but intended to oblige itself to drop divorce if the case being spoken occurs.

The type of tal‘iq or its requirements may be in the form of a choice case (ikhtiyari), so it may or may not be done; may not be a choice case. The choice case can be in the form of the husband's actions, such as the husband's words, "If I enter this man's house, then my wife is stunned." It could also be in the form of the wife's actions, such as the husband's expression, "If you leave the house without permission, then my divorce falls on you." Or the husband's expression, "If you want, I drop divorce on you." While things that are not optional, such as the will of God, the rising of the sun, the death of a person, entering the beginning of a particular month, one's birth, and the like.

Thus, ta‘liq talak itself is required in the form of cases that have not yet occurred, but may or may not occur. If divorce is hung on a case that has happened, then the divorce belongs to the munajjaz divorce. For example the phrase, "If you left yesterday, you were caught." It turned out that the wife had really left, then her divorce fell at that moment too.

Then how can divorce be hung on impossible matters, such as being able to fly, ascend to the sky, and so on? For example the husband's expression, "If you ascend to heaven, you are caught up in it." Including the impossible is the will of God, as the phrase, "You are defeated by God." So the two expressions do not drop divorce, especially if "inshaallah" there is intended as ta‘liq, in accordance with the views of the Hanafi, Maliki, and Shafi'i scholars. It's just according to the Hanbali cleric, with the second phrase, divorce becomes fallen because its ta‘liq is invalid, so it is useless. Likewise, the husband's nickname or greeting, "Hi stunned, God willing!" then, according to the Shafi'i cleric, this summons can also drop divorce because its ta‘liq is invalid.

The next ta‘liq requirement is that the wife who is sentenced to divorce must be ready to be barred, as if she is the legal wife of the husband who fell on divorce. This means, the expression of a man to an unmarried woman, "If you talk again with this person, then you are caught up." So with that expression the woman is not caught up. Even if the woman marries the man, then chats with the person concerned, the divorce does not fall, because when she is taqliq the wife does not have the right to be divorced.

Included in a state ready for divorce when the wife is undergoing a period of iddah raj‘i. The husband's expression to his wife who was in the midst of divorce before, "If talking with this person, then you are caught up." Then the divorce falls because the wife is ready for the divorce.

However, it is not required at the time of ta terjadinyaliq, the husband is among those who are lawful of divorce. So after saying the divorce ta‘liq, for example, the husband experiences mental retardation or memory loss, then the divorce continues to fall. Because, the phrase fell when he was still healthy, his divorce was valid, and fulfilled the requirements, so that the influence of that expression remained (see: Shaykh al-Zuhaili, al-Fiqh al-Islami wa Adillatuhu, [Darul Fikr: Damascus] volume 9, p. 6971).

However, the expression talak mudhaf and talak Tali‘q must not be inserted with the word "will", because the word "will" one of them is attached to the mudhari fi‘il. Whereas fi‘il mudhari is not a sharih (strict) expression for dropping divorce, as follows:

  ألفاظ صريحة: وهي الألفاظ الموضوعة له, التي لا تحتمل غيره, وهي لفظ الطلاق وما تصرف منه, من فعل ماض, مثل: طلقتك, أو اسم فاعل, مثل: أنت طالق, أو اسم مفعول, مثل: أنت مطلقة. فهذه الألفاظ تدل على إيقاع الطلاق ، دون الفعل المضارع أو الأمر ، مثل: تطلقين واطلقي. Meaning: "Sharih expressions are expressions made for the purpose of dropping divorce, where it has no meaning other than the meaning of divorce. The phrase sharih is an expression that contains the word divorce itself, fi‘il madhi derived from that word, like the expression thallaqtuki (I [have] your mentality); isim fi'il means maf‘ul, like anti thaliq (You [have been] tamed); or ism maf‘ul, like anti muthallaqah (you [have] been barred). All of these expressions show the fall of divorce. But excluded the word talak in the form of fi'il mudhari such as tathluqin (You will be controlled), and fiil amr like Uthluqi (divorce you!) ”(Al-Fiqh al-Muyassar fi Dhau al-Kitab wa al-Sunnah, [Medina: Majma Malik Fahd], 1424, volume 1, p. 313).

The question is, what if a husband or wife forgets to do something that is required in the divorce or does not know that his actions are ta‘liq, then Syekh Zainuddin al-Malaibari, one of the Shafi'ite scholars, believes his divorce did not fall, as follows.

 يجوز تعليق الطلاق كالعتق بالشروط ولا يجوز الرجوع فيه قبل وجود الصفة ولا يقع قبل وجود الشرط ولو علقه بفعله شيئا ففعله ناسيا للتعلق أو جاهلا بأنه المعلق عليه لم تطلق. "It is permissible (husband) to ta‘liq talak, as ta‘liq frees slaves, with a number of conditions. However, divorce ta‘liq may not be referred before the described characteristic does not yet exist or the case has not yet occurred. Then if the husband ta'liq divorces by doing something, then he does it because he forgets to be ta'liq or because he does not know if it is ta'liq talak, then his wife is not caught up "(Sheikh Zainuddin al-Malaibari, Fathul Mu ' in, [Beirut: Daru Ibnu Hazm], without years, first cet, p. 517).

From this it can be concluded about the ta‘liq divorce or conditional divorce, first, the ta'liq divorce does not fall as long as the required case does not occur. Secondly, the life of a husband and wife is normal as long as the required case does not occur. Third, divorce ta‘liq fell since the case required. That is, the husband does not need to repeat the divorce words.

Among the sighat ta‘liq is what is usually said by the groom shortly after the marriage contract. Aside from being an effort to protect the rights of the wife, shighat ta‘liq there is also at the same time a promise of faithfulness and an effort to remind the husband's obligations. The following quote:

After the marriage agreement, I: ... bin ... promised with a sincere heart that I will keep my obligations as a husband, and I will associate my wife named ... binti ... well (mu'asyarah bil ma'ruf) according to Islamic teachings.

Next I say the shighat ta'lik to my wife as follows: at any time I (1) leave my wife two years in a row, (2) or I do not give her obligatory income for three months; (3) or I hurt my wife's body / body; (4) or I leave (ignoring) my wife for six months.

Then my wife was not happy and complained about the matter to the Religious Court and her complaint was justified and accepted by the court, and my wife paid a sum of Rp. 10,000, - (ten thousand rupiah) as iwadh (substitute) to me, then my divorce fell to him.

Then my wife was not happy and complained about the matter to the Religious Court and her complaint was justified and accepted by the court, and my wife paid a sum of Rp. 10,000, - (ten thousand rupiah) as iwadh (substitute) to me, then my divorce fell to him.

I authorized the court to accept the replacement money and then hand it over to the Directorate General of Islamic Community Guidance Cq. Directorate of Islamic Affairs and Sharia Development for social worship purposes.

With the shighat ta‘liq, divorce of the husband falls after if what is mentioned in the ta‘liq occurs then is reported by his wife to the Religious Court and his complaint is received. That is, even though what was mentioned in the divorce ta'liq had occurred, but was not reported by the wife, or was reported but was not received by the court, the divorce did not fall.

God knows ‘nature.

Ustadz M. Tatam Wijaya, PP Raudhatul Hafizhiyyah Sukaraja-Sukabumi Alumni, Caregiver of Taklim Assembly "Syubbanul Muttaqin" Sukanagara-Cianjur, West Java.

Source: https://islam.nu.or.id

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