If a man divorces a woman he believes to be a stranger, but it turns out she is his wife?
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The questioner : If a man divorces a woman he believes to be a stranger, but it turns out she is his wife, there are two narrations regarding the validity of the divorce. Abu Bakr based them on the question of whether an explicit divorce requires an intention or not. The Qadi said that this disagreement is only in the case of ignorance regarding the eligibility of the recipient, and it does not apply if one is aware of it.
The Shaykh : Yes. And there is no condition.
The presenter : Repeat.
The Shaykh : The school’s position is that the divorce takes effect. If a man divorces a woman he believes to be a stranger, saying, “You are divorced,” while he thinks she is Zayd’s wife, but it turns out she is his own wife, she is divorced because he addressed her with the divorce. Some of the companions, as you have seen, based it on whether the intention of divorce is required in an explicit case or not. However, there is a difference in reality between the two. Those who say that the intention of divorce is required know that the recipient is eligible for divorce, but because he did not intend it, it did not take effect. Here, however, he believes the recipient is not eligible because he thinks she is a stranger, so there is a difference between the two. But what appears to me is that the divorce does not take effect in this case, because if he had known she was his wife, he would not have divorced her. If someone says, “Then his words are mere play,” we say, yes, his words are mere play, and let it be so. But to separate him from his wife, when this might be the final divorce and he does not think she is his wife but rather a stranger, this is not valid. Perhaps some people get angry and divorce someone other than their wife, but they know she is not their wife. It is said that a man divorced his wife, and the woman cried out in the house. They had neighbors, so the woman called the neighbor and said, “O Abu So-and-so, how is the child?” Or “O So-and-so, what are you saying?” He said, “And you are divorced, over your husband’s shoulder.” So this man, in his intense anger, divorced the second woman.
The presenter : Your comment.
The Shaykh : But he made the divorce conditional, meaning he was scrupulous, may Allah reward him with good, regarding the evil of the wife.
The Shaykh : Yes. And there is no condition.
The presenter : Repeat.
The Shaykh : The school’s position is that the divorce takes effect. If a man divorces a woman he believes to be a stranger, saying, “You are divorced,” while he thinks she is Zayd’s wife, but it turns out she is his own wife, she is divorced because he addressed her with the divorce. Some of the companions, as you have seen, based it on whether the intention of divorce is required in an explicit case or not. However, there is a difference in reality between the two. Those who say that the intention of divorce is required know that the recipient is eligible for divorce, but because he did not intend it, it did not take effect. Here, however, he believes the recipient is not eligible because he thinks she is a stranger, so there is a difference between the two. But what appears to me is that the divorce does not take effect in this case, because if he had known she was his wife, he would not have divorced her. If someone says, “Then his words are mere play,” we say, yes, his words are mere play, and let it be so. But to separate him from his wife, when this might be the final divorce and he does not think she is his wife but rather a stranger, this is not valid. Perhaps some people get angry and divorce someone other than their wife, but they know she is not their wife. It is said that a man divorced his wife, and the woman cried out in the house. They had neighbors, so the woman called the neighbor and said, “O Abu So-and-so, how is the child?” Or “O So-and-so, what are you saying?” He said, “And you are divorced, over your husband’s shoulder.” So this man, in his intense anger, divorced the second woman.
The presenter : Your comment.
The Shaykh : But he made the divorce conditional, meaning he was scrupulous, may Allah reward him with good, regarding the evil of the wife.
Source
قناة «فضيلة الشيخ محمد بن صالح العثيمين»، 456 - لو طلّق الرجل امرأة يظنها أجنبية فتبين أنها امرأته؟ قواعد ابن رجب - ابن عثيمين — youtube.com
The Arabic text is a machine transcription of the audio recording.