The Impact of Intention and Witnessing on the Occurrence of Divorce

The questioner : Shaykh, does it matter if the divorce occurs before or after consummation? In the case of the intention to divorce, the resolve to do so, and witnessing, and similar consequences?

The Shaykh : Witnessing is, of course, necessary. But what do you mean by the intention to divorce?

The questioner : I mean, for example, a man says, "So-and-so, my wife, is divorced," but he does not intend it, meaning like the talk people say, you know.

The Shaykh : No, my brother, the intention is considered in what is called implied divorce (kinayah). As for explicit divorce, the intention is not looked at; otherwise, there would be no divorce, because every person who divorces would say, "I did not intend to divorce." As for speech that is not explicit in divorce and can be interpreted in two ways, the one who uttered that phrase is judged between him and Allah the Exalted. It is said to him: If you intended divorce, it has occurred; if you did not intend it, it has not occurred. For example, if he says, "Go to your family," or "Go to your family," this is not like saying, "I have divorced you, so go to your family." In the latter case, his intention is not accepted and not looked at. But if he says, "Go to your family," and is asked, "What did you mean, my brother?" and he says, "By Allah, I no longer see hair these days; I did not intend to divorce her," and he says, "No, I did not intend to divorce her," then his intention is accepted in this case. This is not the case with explicit divorce. As for witnessing, it is necessary.