Question Summary:
I would appreciate if you can please explain that WHY if an un-married person before performing nikkah makes a statement like “If I marry XYZ then she is divorced” or “Any woman I marry is divorced”, then such a statement according to Hanafi fiqh will cause an automatic divorce for this person in his future marriage/nikkah?

Question Detail:

As-salaam alay kum,
I would appreciate if you can please explain that WHY if an un-married person before performing nikkah makes a statement like "If I marry XYZ then she is divorced" or "Any woman I marry is divorced", then such a statement according to Hanafi fiqh will cause an automatic divorce for this person in his future marriage/nikkah?
The Shafaee and Hanbali both sunni schools opine that such statements WILL NOT cause divorce in future marriage if they were uttered before a nikkah was performed (while a person was still un-married).
What I need to know is what evidence is presented by Hanafi scholars to support their ruling? Is it possible that when Hanafi ruling was formed that the below outlined hadiths and other evidence had not come across Abu Hanifa or other Hanafi jurists and hence Hanafi school formed a ruling that is opposite to the ruling of majority of scholars?
The following evidence is provided by other schools/scholars who rule that such a statement made before marriage will not cause any divorce in future marriage whenever a person gets married:
 
Among the evidence that there is no divorce before marriage (nikaah) are the following reports:
1. The hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him), who said: “The Messenger of Allaah  (peace and blessings of Allaah be upon him) said: ‘There is no vow for the son of Adam with regard to that which he does not possess; there is no setting free of (a slave) whom he does not possess; there is no divorce of (a wife) whom he does not possess.” (Reported by al-Tirmidhi).
2. The hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him), who reported that the Messenger of Allaah  (peace and blessings of Allaah be upon him) said: “No divorce except of (the wife) whom you possess; no setting free except of (the slave) whom you possess, and no selling except of (the goods) that you possess.” (Reported by Abu Dawood).
3. The hadeeth of Ibn Makhramah from the Prophet  (peace and blessings of Allaah be upon him), who said, “No divorce before marriage, and no setting free before taking possession.” (Reported by Ibn Maajah).
4. Imaam al-Bukhaari (may Allaah have mercy on him) said in his book al-Jaami’ al-Saheeh:
Chapter: there is no divorce before marriage. Allaah says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘iddah have you to count in respect of them. So give them a present, and set them free, i.e., divorce in a handsome manner.” [al-Ahzaab 33:49]. Ibn ‘Abbaas said: “Allaah made divorce after marriage.”
5. Al-Bayhaqi (may Allaah have mercy on him) stated that the majority of the Sahaabah and Taabi’een understood from these texts (i.e. above mentioned hadiths on divorce before marriage) that if a man says, “If I marry So and so then she is divorced,” then he marries her, no divorce takes place, because he issued a conditional divorce and said it at a time when she was not his wife. This was narrated from him by al-Haafiz in Fath al-Baari.
6. Ibn ‘Abbaas (may Allaah be pleased with him) was asked about a man who said: “Every woman whom I marry will be divorced.” He said: It is of no significance, because Allaah says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them …” [al-Ahzaab 33:49].
7. Ibn Khuzaymah also narrated that he [Ibn ‘Abbaas] was asked about a man who said: “If I marry So and so then she will be divorced.” He said: It is of no significance, because only the one who is married to a woman can divorce her.
Following are some major scholars who are of the opinion that no divorce will take place in future marriage by any such statements if they were uttered while the man was still un-married:
Jurists like Sufyaan Bin ‘Uyaynah, Abdul Rahman Bin Mahdi, Imam Shafi‘i, Imam Ahmed Bin Hanbal, Ishaaq, Abu Thawr, Daud and Muhammad Bin Jarir Tabarai hold the above view.
Your clarification that why Hanafi opinion (along with supporting evidence for their ruling) is totally opposite to the view held by majority of other scholars will be very helpful.
Thank you.

Answer :

In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatoh
If a person makes the following statement, "If I marry so and so, she is divorced" or, "Any woman I marry is divorced", talaaq will automatically take place after marriage according to the Hanafi school of thought. This is also the mazhab of  Mujahid, Salim Ibn Abdillah and Zuhri (Rahimahumullah)
These jurists have based their opinion on the following Aathaar (narrations)
1) Abdullah Ibn Umar used to say, " When a man says, when I marry so and so, she is divorced' then it will be so (i.e. talaaq will take place) when he marries her. If he divorces her once, twice or thrice then it will take place as he said". (I'laa us Sunan, Hadith: 3285)
 
عن عبد الله ابن عمر أنه كان يقول: (( إذ1 قال الرجل: إذا نكحت فلانة فهي طالق، فهي كذلك إذا نكحها، و إن طلقها واحدة أو اثنتين أو ثلاثا فهو كما قال)) (رواه الإمام محمد في الموطأ و رجاله ثقات.)
2) When a similar issue was mentioned to Aswad Ibn Yazeed, he opined that no talaaq takes place. Thereafter he asked the Ulama of Hijaz regarding the same mas'alah and they also opined that no talaaq takes place. Thereafter the matter was presented to Abdullah Ibn Mas'ood and he had opined that talaaq takes place. (I'laa us Sunan, Hadith 3286)
عن الأسود ابن يزيد: (( أنه قال لامرأة ذكرت له: إن تزوجتها فهي طالق، فلم ير الأسود شيئا، و سأل أهل الحجاز فلم يروا ذلك شيئا، فتزوجتها و دخل بها، فذكر ذلك لعبد الله ابن مسعود، فأمره أن يخبرها  أنها ملك بنفسها)) (رواه الأمام محمد في كتاب الآثار)
3) Imam Zuhri had once mentioned that if a person says, "Every woman I marry is divorced", talaaq will automatically take place. So his contemporary Ma'amar objected to it and said," Is it not mentioned in the Hadith that there is no divorce before marriage?" Imam Zuhri replied," that hadith refers to a person who said the wife of so and so is divorced". (Whereas she is not the wife of the person who uttered these words) (I'laa us Sunan, Hadith: 3287)
عن معمر عن الزهري : (( أنه قال في رجل قال: كل امرأة أتزوجها فهي طالق: هو كما قال، فقال له معمر: أليس قد جاء: لا طلاق قبل النكاح، قال إنما ذلك أن يقول : إمرأة فلان طالق)) (أخرجه عبد الرزاق)
It is evident from the above quoted narrations that the Hanafi jurists did not simply "make up" this mas'alah, rather, their viewpoint is based on the Aathaar of Sahabah and Tabi'een (Rahimahumullah)
The Hanafi jurists interpret the Hadith, "There is no divorce before marriage" and other Ahadith that are similar to it to mean that talaaq cannot take place before marriage, instead, talaaq can only occur after marriage. (Mirqaatul Mafateeh, I'laa us Sunan, Pg 222-224, Vol: 11, Darul Kutubil Ilmiyyah)
 
And Allah knows best
Wassalam
Ml. Suhail Tarmahomed,
Student Darul Iftaa
Checked and Approved by:
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In'aamiyyah