If a man is married to two women and sends a message to one of them containing her divorce, but she does not accept it and refuses the divorce, and does not remarry after that, and after several years have passed
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The questioner : He says, "I am a man married to two women, and I came to the Kingdom to work. After arriving for a period of time, I sent a message to one of my wives containing her divorce, and I am determined on this. After the message arrived, she did not accept that divorce and rejected it, and she refused to marry anyone after me forever. Finally, after a long period of several years, I received news that she had filed a lawsuit against me in court, demanding maintenance for the past years on the grounds that she refused her divorce. She also requests that I enable her to perform Hajj and 'Umrah at my expense. Am I obligated to provide any of this to her, or is the divorce effective and I owe her nothing?"
The Shaykh : There is no doubt that divorce is in the hands of men, not women, and I do not know of anyone who said that the wife's consent is a condition for it to take effect. The divorce takes effect on the woman whether she agrees to it or not. However, the matter in your case, my brother, may be that the wife did not accept the divorce document because the document was not in a form that establishes the ruling, such as being merely a writing whose author is unknown and whose writer is not identified. In such matters, a person must be careful and not write his wife's divorce with just a pen that most people may not recognize. This is an error, and I have seen many people do this. You find him writing, "I, so-and-so, son of so-and-so, acknowledge in a legal acknowledgment that I have divorced my wife so-and-so," and then he signs it. In reality, this is a great negligence, as important issues depend on it. One of them is that if the woman does not have a document other than such a document, she cannot get married with it. So if someone wants to divorce his wife, he must follow what comes next. First, he looks to see if she is menstruating, pure, or pregnant. If she is pregnant, it is valid to divorce her, even if he had intercourse with her on that day. It is permissible to divorce her, contrary to what some of the common people understand. They say that a pregnant woman cannot be divorced, and I do not know where they got this saying from.
The important point is that if the woman is pregnant, there is no harm in divorcing her immediately, even if he had intercourse with her that same day.
Second, if she is not pregnant and she is menstruating, it is not permissible for him to divorce her, and it is forbidden for him. The Messenger of Allah (peace and blessings be upon him) was displeased when it was mentioned to him that Ibn 'Umar (may Allah be pleased with them both) divorced his wife while she was menstruating, because Allah the Exalted says:[At-Talaq 65:1] And whoever divorces her during menstruation has not divorced her for her waiting period. If she is pure and not pregnant, it is looked into whether he had intercourse with her during this period of purity or not. If he had intercourse with her, it is not permissible for him to divorce her until she menstruates and then becomes pure. If he did not have intercourse with her during this period of purity, it is permissible for him to divorce her. The result is that it is not permissible for a woman to be divorced during menstruation or during the period of purity in which her husband had intercourse with her. It is permissible to divorce her during pregnancy and during the period of purity in which he did not have intercourse with her. So these are four cases: menstruation, and purity in which he had intercourse with her; in these two cases, the husband is not permitted to divorce her. Purity in which he did not have intercourse with her, and pregnancy; in these two cases, the husband is permitted to divorce her, and it is not a condition for his divorce that she agrees to it. This must be considered at the time of divorce.
Second.
The questioner : Yes.
The Shaykh : The divorce must be established by legal proof. That is, the man divorces her, and if he writes it in a document, it must be with the testimony of two witnesses and in a known handwriting, or in handwriting certified by the court, for example, or by someone whose certification is trusted, someone known for his trustworthy certification. As for sending a paper like this with unknown handwriting and no certification, the woman may deny the divorce. She may say, "This divorce is not proven," and in that case, she will force him to go to trial and litigation. This does not mean that the divorce does not take effect unless with this document. No, if a man divorces her without a document, the divorce takes effect. But what I want from this is that the divorce document be in the wife's hand so that when the waiting period is completed and she wants to get married, she has a document proving her separation from her first husband.
The questioner : Yes.
The Shaykh : Yes.
The questioner : Regarding maintenance?
The Shaykh : Regarding maintenance, as I said, the woman may not have accepted this paper.
The questioner : Yes.
The Shaykh : And she did not see it as a divorce document. And I do not know about the paper this man sent. Therefore, he must be taken to court. Either he proves that he divorced her on the date he wrote this paper, and if it is proven, he owes her no maintenance. Or he does not prove it, and in that case, the marriage remains as it was until the matter is clarified.
The Shaykh : There is no doubt that divorce is in the hands of men, not women, and I do not know of anyone who said that the wife's consent is a condition for it to take effect. The divorce takes effect on the woman whether she agrees to it or not. However, the matter in your case, my brother, may be that the wife did not accept the divorce document because the document was not in a form that establishes the ruling, such as being merely a writing whose author is unknown and whose writer is not identified. In such matters, a person must be careful and not write his wife's divorce with just a pen that most people may not recognize. This is an error, and I have seen many people do this. You find him writing, "I, so-and-so, son of so-and-so, acknowledge in a legal acknowledgment that I have divorced my wife so-and-so," and then he signs it. In reality, this is a great negligence, as important issues depend on it. One of them is that if the woman does not have a document other than such a document, she cannot get married with it. So if someone wants to divorce his wife, he must follow what comes next. First, he looks to see if she is menstruating, pure, or pregnant. If she is pregnant, it is valid to divorce her, even if he had intercourse with her on that day. It is permissible to divorce her, contrary to what some of the common people understand. They say that a pregnant woman cannot be divorced, and I do not know where they got this saying from.
The important point is that if the woman is pregnant, there is no harm in divorcing her immediately, even if he had intercourse with her that same day.
Second, if she is not pregnant and she is menstruating, it is not permissible for him to divorce her, and it is forbidden for him. The Messenger of Allah (peace and blessings be upon him) was displeased when it was mentioned to him that Ibn 'Umar (may Allah be pleased with them both) divorced his wife while she was menstruating, because Allah the Exalted says:
O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period
يا أيها النبي إذا طلّقتم النساء فطلقوهن لعدتهنSecond.
The questioner : Yes.
The Shaykh : The divorce must be established by legal proof. That is, the man divorces her, and if he writes it in a document, it must be with the testimony of two witnesses and in a known handwriting, or in handwriting certified by the court, for example, or by someone whose certification is trusted, someone known for his trustworthy certification. As for sending a paper like this with unknown handwriting and no certification, the woman may deny the divorce. She may say, "This divorce is not proven," and in that case, she will force him to go to trial and litigation. This does not mean that the divorce does not take effect unless with this document. No, if a man divorces her without a document, the divorce takes effect. But what I want from this is that the divorce document be in the wife's hand so that when the waiting period is completed and she wants to get married, she has a document proving her separation from her first husband.
The questioner : Yes.
The Shaykh : Yes.
The questioner : Regarding maintenance?
The Shaykh : Regarding maintenance, as I said, the woman may not have accepted this paper.
The questioner : Yes.
The Shaykh : And she did not see it as a divorce document. And I do not know about the paper this man sent. Therefore, he must be taken to court. Either he proves that he divorced her on the date he wrote this paper, and if it is proven, he owes her no maintenance. Or he does not prove it, and in that case, the marriage remains as it was until the matter is clarified.