What is the ruling on a man who had problems with his wife, so he recorded a tape and swore to divorce her in it, and sent it to her? Does this divorce take effect?
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The questioner : What is the ruling in the Shari'ah, in your view, regarding a man residing in a country other than his own, who had some problems with his wife, so he immediately recorded a tape and swore an oath of divorce to his wife in the tape and sent it to her? Does the divorce take effect on her or not?
The Shaykh : If this man explicitly stated the divorce in the tape and addressed her saying, "You are divorced," then she is divorced by that, because this tape in which the wording of divorce was recorded is like a paper on which the divorce was written, and divorce is established if written on a paper. In fact, the tape is more explicit and clearer. Accordingly, his wife is divorced by this means.
As for if the divorce is not an immediate divorce, but is a divorce in the sense of an oath, such as if he says to her, "If you leave the house, you are divorced," or "If you do such-and-such, you are divorced," intending thereby to emphasize preventing her and threatening her, and the woman is not cheap in his eyes, but he considers himself desiring her, even if she defied him and left, then this has the ruling of an oath. If the wife defies him, it is obligatory for him to expiate the oath. The expiation of the oath is mentioned by Allah the Exalted in His saying:[Al-Ma'idah 5:89] This is the expiation of the oath.
And my advice to this brother questioner and those like him is that they should not be negligent regarding the matter of divorce, and that they should not make it one of the matters that pass on their tongues without intention. Rather, they should not be negligent in issues of divorce and should not let it pass on their tongues constantly, even if without intention, because this is a matter with which one does not play. Perhaps they will go to one of the scholars who holds that conditional divorce is a pure condition, even if intended as an oath. In that case, if the defiance occurs and the condition is met, the divorce takes effect.
The summary of the answer is that we say to this brother: Your recording of your wife's divorce in this tape results in the divorce taking effect, because it is more explicit than effecting divorce by writing. And if what you recorded was conditional, by saying to her, "If you do such-and-such, you are divorced," then your intention is looked at. If you intended thereby the divorce, and that if she did that, you disliked her and did not want her to remain your wife, then the divorce takes effect. And if you intended thereby an oath, meaning you wanted her to refrain and did not want to separate from her, even if she defied you, then its ruling is the ruling of an oath, in which the expiation of an oath is obligatory.
The questioner : May Allah reward you.
The Shaykh : If this man explicitly stated the divorce in the tape and addressed her saying, "You are divorced," then she is divorced by that, because this tape in which the wording of divorce was recorded is like a paper on which the divorce was written, and divorce is established if written on a paper. In fact, the tape is more explicit and clearer. Accordingly, his wife is divorced by this means.
As for if the divorce is not an immediate divorce, but is a divorce in the sense of an oath, such as if he says to her, "If you leave the house, you are divorced," or "If you do such-and-such, you are divorced," intending thereby to emphasize preventing her and threatening her, and the woman is not cheap in his eyes, but he considers himself desiring her, even if she defied him and left, then this has the ruling of an oath. If the wife defies him, it is obligatory for him to expiate the oath. The expiation of the oath is mentioned by Allah the Exalted in His saying:
So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave. But whoever cannot find [or afford it] - then a fast of three days [is required]
فَكَفَّارَتُهُ إِطْعَامُ عَشَرَةِ مَسَاكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ كِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ فَمَنْ لَمْ يَجِدْ فَصِيَامُ ثَلاثَةِ أَيَّامٍAnd my advice to this brother questioner and those like him is that they should not be negligent regarding the matter of divorce, and that they should not make it one of the matters that pass on their tongues without intention. Rather, they should not be negligent in issues of divorce and should not let it pass on their tongues constantly, even if without intention, because this is a matter with which one does not play. Perhaps they will go to one of the scholars who holds that conditional divorce is a pure condition, even if intended as an oath. In that case, if the defiance occurs and the condition is met, the divorce takes effect.
The summary of the answer is that we say to this brother: Your recording of your wife's divorce in this tape results in the divorce taking effect, because it is more explicit than effecting divorce by writing. And if what you recorded was conditional, by saying to her, "If you do such-and-such, you are divorced," then your intention is looked at. If you intended thereby the divorce, and that if she did that, you disliked her and did not want her to remain your wife, then the divorce takes effect. And if you intended thereby an oath, meaning you wanted her to refrain and did not want to separate from her, even if she defied you, then its ruling is the ruling of an oath, in which the expiation of an oath is obligatory.
The questioner : May Allah reward you.