Abu 'Ubayd reported that he said: 'The experts of medicine say that a malady does not remain latent in the body for more than a year, then it manifests.' The beginning of the year is from the time of their litigation. Ibn 'Abd al-Barr said: 'Upon this are the group of those who hold the view of granting him a period.' Ma'mar said regarding the hadith of Umar: 'He is granted a one-year period' from the day of their litigation. If the period expires and he has not had intercourse, she has the choice. If she chooses the annulment, it is not permitted except by the ruling of a judge, because it is a matter of disagreement. So, either he [the judge] annuls it, [or he returns her] to him and she annuls it, according to the statement of the generality of those who hold this view. He does not annul it until she chooses the annulment and requests it, because it is for her right, so she cannot be compelled to claim it, just as in the case of annulment due to insolvency. When he annuls it, it is an annulment (faskh) and not a divorce (talaq). This is the view of al-Shafi'i. Abu Hanifa, Malik, and al-Thawri said: The judge separates them, and it counts as a single pronouncement of divorce, because it is a separation due to the absence of intercourse, so it is a divorce, like the separation of the one who takes an oath of abstinence (ila'). Our position is that this is an option established due to a defect, so it is an annulment, like the annulment by a purchaser due to a defect.

Section: If they agree after the separation on a return, it is not permitted except by a new marriage contract, because she has become irrevocably separated and the marriage has been annulled. If he marries her, she is with him under a count of three divorces. Ahmad explicitly stated this. Abu Bakr mentioned a second view regarding this, that they can never be reunited because it is a separation that depends on the ruling of a judge, so it renders marriage prohibited, like the separation of li'an (imprecation). The established position (madhhab) is that she is lawful for him, because it is a separation due to a defect, so it does not prevent marriage, like the separation of an emancipated slave woman and the separation in all other defects.