Chapter on the Divorce by a Slave

"The divorce of a slave who marries a free woman or marries a bondwoman belonging to another people is in the hands of the slave himself. However, if he marries a bondwoman owned by his master, the master has the authority to either separate them or keep them together if he wishes. Additionally, if he wants, he can take her away from him without the need for a formal divorce."

"A slave cannot validly perform a divorce or marriage except with the permission of his master." I asked: "If the master himself arranged his marriage, who then has the authority over the divorce?" They (as) replied: "The authority over the divorce remains with the master, as Allah (swt) has set forth the example: 'Allah sets forth a parable: a slave who is owned and has no power over anything...' (Surah An-Nahl 16:75) and 'anything' here refers to divorce."

I asked him about a man who marries off his bondwoman (amah) to a free man or to a slave belonging to another group of people. Imam (as) replied: "The master does not have the right to take her back from her husband. However, if he sells her and the one who purchases her wishes to separate her from her husband, he is permitted to do so."

I asked Abu Jafar Imam Muhammad ibn Ali Al-Baqir (as) about a slave who married without the permission of his master. Imam (as) replied: "This matter is up to the master. If he wishes, he can approve the marriage, and if he wishes, he can separate them." I said: "May Allah (swt) rectify your affairs! Al-Ḥakam ibn ʿUtaybah, Ibrahim al-Nakhaʿi, and their companions say that the marriage is invalid from the outset, and the master's approval does not make it lawful." Imam (as) responded: "He only disobeyed his master but did not disobey Allah (swt). Therefore, if the master approves it, the marriage becomes valid."

I asked him, "If a free woman is married to a slave, how many divorces can he pronounce against her?" He (as) replied: "Ali (as) said: 'Divorce and the waiting period (ʿiddah) are determined according to the status of the women.'"

"The divorce of a free woman when she is married to a slave is three divorces, and the divorce of a bondwoman when she is married to a free man is two divorces."

"If a man is free and his wife is a bondwoman, her divorce is two pronouncements. But if the man is a slave and his wife is a free woman, her divorce is three pronouncements."

"If a free man divorces a bondwoman and she completes part of her waiting period (ʿiddah) while still a slave and then she is freed, she must complete the waiting period according to the rules of a bondwoman."

Hadith.4867 - In the narration of Samaʿah from Abu Abdullah (as), he said: "The waiting period (ʿiddah) of a bondwoman who does not menstruate is forty-five nights."

"The divorce of a bondwoman is through her sale or the sale of her husband." Imam (as) also said regarding a man who marries his bondwoman to a free man and then sells her: "This constitutes separation between them unless the buyer wishes to let them remain together."

"If a bondwoman is sold while she has a husband, the buyer has the choice-if he wishes, he may separate them, and if he wishes, he may leave her with her husband. However, if he chooses to leave her with him, he can no longer separate them after agreeing to that." Imam (as) further said: "If a male slave is sold, then his new master has the same choice as the buyer of the bondwoman. But if the master consents to leave them together, he cannot separate them after that consent."

I asked Abu Abdullah (as) about a man whose father was a slave and whose father had a wife who was a mukatabah (a bondwoman under a contract for her freedom) and had already paid part of what she owed. The son of the slave said to her: "Would you like me to help you complete your manumission payment so that you can fulfill what you owe, on the condition that you will not have the option to separate from my father once you gain your freedom?" She agreed, and he gave her the amount for her manumission. I asked: "Would she still have the choice to leave his father after that?" Imam (as) replied: "No, she does not have the option. Muslims are bound by their conditions."

"If a slave man had a bondwoman as his wife and he divorced her once, and then both of them were freed, she would remain with him on the basis of that one divorce."

"She must complete the waiting period of three menstrual cycles. However, if her husband died and she was then freed before her waiting period ended, her ʿiddah would be four months and ten days."

I asked Abu Abdullah (as) about a bondwoman who was married to a slave man and then she was freed. Imam (as) said: "She has the choice; if she wishes, she may remain with her husband, and if she wishes, she may separate from him."

"The Commander of the Faithful (as) ruled concerning a concubine of a man who bore a child for her master. The master then married her to his slave. Later, the master passed away and freed her. She then married the slave, and when he died, her child inherited from him. Then the child passed away, and she inherited her husband, the slave. They both came to dispute, with the man saying, 'She is my wife, and I will not divorce her,' while the woman said: 'He is my slave, and he has not been intimate with me.' She was asked: 'Did he have intercourse with you since he became your slave?' She replied: 'No.' Imam (as) said: 'Had he been intimate with you after becoming your slave, I would have punished you. Go, for he is your slave; he has no right over you. You may sell him if you wish, enslave him if you wish, or free him if you wish.'"