Does divorce take place if a man pronounces the divorce of his wife without naming her?
Machine translationRead the Arabic original
The questioner : I am, praise be to Allah, a Muslim who performs my religious obligations in the best manner. I pray, I fast, and I recite the Qur'an. However, this year a misunderstanding occurred between me and my wife, and I said: "You are divorced." I did not mention her name or say: "You are divorced." I asked our local shaykh, and he said verbatim: "If you did not pronounce her name or say 'You are divorced,' then the divorce does not take place, and nothing is upon you, if Allah wills." The second time, I was extremely ill and in bed, and a disagreement occurred between me and her, so I said: "You are divorced. Divorced. Divorced." I was in a state of anger because she was invoking a curse of no recovery upon me. We reconciled afterwards, but I did not approach her. My health improved, and I became confused about my situation. So I went to a shaykh near us and asked him, and he said to me: "I have no solution for you." So I went to another shaykh, and he said: "There is no harm in that. Is she with you until I come and contract a new marriage between you and her?" I said to him: "She is far from me, but teach me how to make the new contract." So I returned to my family and brought the village imam and another person, and they contracted a new marriage between me and her so that my heart would be at ease. I contacted her with the new contract, and we remained in this state for three months. I inform you that before the divorce, I thought that divorce was three times, meaning: that a person says three divorces in the first instance, three divorces in the second instance, and three divorces in the third instance as well. I am now confused about my situation, knowing that I pray and fast and perform my obligations as I mentioned before in the best manner. What is the ruling in my case, and what must I do?
The Shaykh : Praise be to Allah, Lord of the worlds, and I send prayers and peace upon our Prophet Muhammad, and upon his family and all his Companions. The truth is that when I read this question, I did not want to answer it, or I did not want to respond to it, because this questioner asked and was satisfied with the opinion of those he asked. The scholars have mentioned that if a person consults a qualified mufti, is convinced by his words, and commits to them, he should not ask anyone else. Because when he asks him, he believes that what he says is the Shari'ah of Allah, and the Shari'ah of Allah the Exalted, if a person commits to it, cannot be replaced by anything else. However, I saw that I should answer this question, not as a personal answer for this questioner, but for the sake of benefit, because it was presented and heard by those who listen to this program.
The first incident that occurred with this person is that he said: "You are divorced" with the letter kaf. The kaf here is a letter of address, and there is no doubt that with the letter of address he intends his wife. If that is the case, then she is divorced, whether he used the separate pronoun, which is: "You are divorced," or the attached pronoun, which is: "You are divorced." In fact, "You are divorced" is more explicit than "You are divorced," because the sentence here is affirmed by "in," unlike "You are divorced." The pronoun in "You are divorced" is like the pronoun in "You are divorced," because both are pronouns of address. Likewise, if he named his wife and said: "My wife so-and-so is divorced," even if she is not present, she is divorced. Accordingly, the fatwa of the one who gave you a ruling in the first issue that your wife was not divorced is an incorrect fatwa. As for the second incident: he mentioned that he was ill, and she angered him with severe anger until he pronounced: "You are divorced, divorced, divorced." Then he went to a shaykh to ask him, and the apparent fatwa of the shaykh was that he ruled on her final divorce and that a new contract was necessary. In any case, we say in answering this incident: if the anger was severe to the extent that he did not know what he was saying, then his divorce does not take place. In fact, even if he was aware of what he was saying, but the anger forced him and carried him such that he could not restrain his anger and he said the divorce, then his divorce does not take place according to the correct opinion. This is due to the saying of the Prophet (peace and blessings be upon him):Sunan ad-Daraqutni 16:86, and because this is internal psychological coercion, which resembles external coercion from someone other than the wife.
As for if the anger does not reach this extent, then the divorce takes place. However, the divorce takes place as one if he said: "You are divorced, divorced, divorced" and did not intend the three, then it takes place as one, even according to the well-known position of the madhhab of Imam Ahmad (may Allah have mercy on him).
And as for if he intended with his saying: "You are divorced, divorced, divorced" the three, then the three divorces take place according to the well-known position also in the madhhab of Imam Ahmad.
The stronger opinion in my view is that the three divorces do not take place by repeating their phrases, even if he intended that, due to the generality of the hadith of Ibn Abbas (may Allah be pleased with him and his father):, and because if a person divorces with one divorce following another divorce, he has divorced her other than for the waiting period. And Allah the Exalted said: [At-Talaq 65:1] The reason it is considered a divorce other than for the waiting period is that the scholars said: if a person divorces his wife with one divorce, and then after she has menstruated twice, he divorces her a second time, she does not restart the waiting period but builds upon the first waiting period. This means that the second divorce was not a divorce for a waiting period. And Allah the Exalted said: If it had been a divorce for a waiting period, she would have been obligated to restart it. So the stronger opinion is that repeating the divorce, meaning repeating its phrases, does not repeat the divorce. This opinion is the choice of Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him), and it is what the apparent meaning of the hadith of Ibn Abbas indicates. Accordingly, this wife whom you divorced by saying: "You are divorced, divorced, divorced," if she is in the waiting period, she does not need a new contract. And if she is after the end of the waiting period, she needs a new contract.
This answer that I gave is not a personal answer for this man, but it is a scholarly answer regarding such an incident, because I do not like to issue a fatwa on something that someone before me has already issued a fatwa on, because that leads to fluctuation for the general public if the fatwa differs, and hesitation and doubt.
The questioner : May Allah bless you.
The Shaykh : Praise be to Allah, Lord of the worlds, and I send prayers and peace upon our Prophet Muhammad, and upon his family and all his Companions. The truth is that when I read this question, I did not want to answer it, or I did not want to respond to it, because this questioner asked and was satisfied with the opinion of those he asked. The scholars have mentioned that if a person consults a qualified mufti, is convinced by his words, and commits to them, he should not ask anyone else. Because when he asks him, he believes that what he says is the Shari'ah of Allah, and the Shari'ah of Allah the Exalted, if a person commits to it, cannot be replaced by anything else. However, I saw that I should answer this question, not as a personal answer for this questioner, but for the sake of benefit, because it was presented and heard by those who listen to this program.
The first incident that occurred with this person is that he said: "You are divorced" with the letter kaf. The kaf here is a letter of address, and there is no doubt that with the letter of address he intends his wife. If that is the case, then she is divorced, whether he used the separate pronoun, which is: "You are divorced," or the attached pronoun, which is: "You are divorced." In fact, "You are divorced" is more explicit than "You are divorced," because the sentence here is affirmed by "in," unlike "You are divorced." The pronoun in "You are divorced" is like the pronoun in "You are divorced," because both are pronouns of address. Likewise, if he named his wife and said: "My wife so-and-so is divorced," even if she is not present, she is divorced. Accordingly, the fatwa of the one who gave you a ruling in the first issue that your wife was not divorced is an incorrect fatwa. As for the second incident: he mentioned that he was ill, and she angered him with severe anger until he pronounced: "You are divorced, divorced, divorced." Then he went to a shaykh to ask him, and the apparent fatwa of the shaykh was that he ruled on her final divorce and that a new contract was necessary. In any case, we say in answering this incident: if the anger was severe to the extent that he did not know what he was saying, then his divorce does not take place. In fact, even if he was aware of what he was saying, but the anger forced him and carried him such that he could not restrain his anger and he said the divorce, then his divorce does not take place according to the correct opinion. This is due to the saying of the Prophet (peace and blessings be upon him):
There is no divorce in a state of being overwhelmed.
لا طلاق في إغلاقAs for if the anger does not reach this extent, then the divorce takes place. However, the divorce takes place as one if he said: "You are divorced, divorced, divorced" and did not intend the three, then it takes place as one, even according to the well-known position of the madhhab of Imam Ahmad (may Allah have mercy on him).
And as for if he intended with his saying: "You are divorced, divorced, divorced" the three, then the three divorces take place according to the well-known position also in the madhhab of Imam Ahmad.
The stronger opinion in my view is that the three divorces do not take place by repeating their phrases, even if he intended that, due to the generality of the hadith of Ibn Abbas (may Allah be pleased with him and his father):
Divorce during the time of the Prophet (peace and blessings be upon him), the time of Abu Bakr, and two years of the caliphate of Umar was that three divorces were considered one.
كان الطلاق في عهد النبي صلى الله عليه وسلم وعهد أبي بكر وسنتين من خلافة عمر طلاق الثلاث واحدةO Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period
يا أيها النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّSo divorce them during their waiting periods
فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّThis answer that I gave is not a personal answer for this man, but it is a scholarly answer regarding such an incident, because I do not like to issue a fatwa on something that someone before me has already issued a fatwa on, because that leads to fluctuation for the general public if the fatwa differs, and hesitation and doubt.
The questioner : May Allah bless you.