Things happen to spouses, such as the death of their children or the illness of the wife, and this continues for a long time without recovery despite going to the hospitals.
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The questioner : From Yemen, the name is Mansur al-'Amari, Sana'a. He has a set of questions, starting with this one. He says: Things happen to spouses, such as the death of their children or the illness of the wife, and this continues for a long time without recovery despite going to the hospitals. Some people say that the marriage contract was made at an inauspicious time, and they advise the couple to renew the marriage contract. The man divorces his wife, and after a period that may reach three hours, the marriage contract is renewed with a specific increase in the mahr above the first mahr. It is known that the husband does not have the intention of divorce; that is, the husband does not want to divorce his wife, but he wants from this the safety of his children and the healing of his wife. Does this count as a divorce for the man? Is the increased mahr above the first mahr obligatory or not? What is your opinion in this matter? May Allah reward you?
The Shaykh : Our view in this matter is that this has no basis. The illness of the wife or the husband, or the loss of children, does not result in the invalidity of the marriage. It is obligatory to look at the marriage contract, whether such illness or loss of children occurred or not. It is obligatory to look at it; if a person is in doubt about it, if it conforms to the Shari'ah, there is no need to renew it. If it contradicts the Shari'ah, for example, if it was contracted during a time of ignorance in a manner that is not valid, then the contract is renewed, and she remains his wife without divorce.
This is our view in this issue. As for the issue of divorce without intention, this is a matter of disagreement among the scholars. Some scholars say that it is a condition for the occurrence of divorce that it be intended by the husband. If he utters the word, meaning he says "You are divorced" without intending divorce, then the divorce does not occur. Some scholars said that the divorce occurs unless he intended something else. If he intended something else, it does not occur. That is, if he says to his wife "You are divorced", she is divorced, unless he intends other than divorce, such as intending by his saying "You are divorced" to mean divorced from a bond or from a shackle, or the like. In that case, she is not divorced.
In this case, if he sues her before the judge, the judge will rule based on the wording, which is the separation of the wife, because the judge only rules based on what he hears. If a problem occurs between the husband and the wife, such as the husband saying, "I did not intend divorce," and this sometimes happens if the wife insists on the husband to divorce her and asks him for divorce and insists on it, some husbands say to her, "You are divorced," meaning "You are not bound by the ropes and not shackled by them." Here, a problem arises between the two: she says, "You divorced me," and he says, "I did not intend divorce." Is it better for the wife to take her husband to the judge, or is it better to take his intention and believe him so that the divorce does not occur, or is it better to believe him and take what he intended so that the divorce does not occur? We say: if the woman knows from her husband that he is a believer, mindful of Allah the Exalted and Majestic, and does not claim what is contrary to reality, then it is not permissible for her to take him to the judge. But if she knows that her husband is weak in faith, weak in fear of Allah the Exalted and Majestic, and it does not matter to him whether his wife is lawful for him or forbidden, then in this case, it is obligatory for her to take him to the judge so that the judge rules with separation, because the judge, as I mentioned, has before him only what appears from the husband's words, due to the saying of the Prophet (peace and blessings be upon him). Yes.
The questioner : May Allah bless you, O honorable Shaykh, for what you have clarified for us and for the honorable listening brothers.
Our honorable brothers, the honorable Shaykh Muhammad ibn Salih al-Uthaymeen, professor at the College of Sharia in Qassim and preacher and imam of the Great Mosque in Unaizah, answered your questions.
This day's episode has ended. Peace be upon you and Allah's mercy and blessings.
The Shaykh : Our view in this matter is that this has no basis. The illness of the wife or the husband, or the loss of children, does not result in the invalidity of the marriage. It is obligatory to look at the marriage contract, whether such illness or loss of children occurred or not. It is obligatory to look at it; if a person is in doubt about it, if it conforms to the Shari'ah, there is no need to renew it. If it contradicts the Shari'ah, for example, if it was contracted during a time of ignorance in a manner that is not valid, then the contract is renewed, and she remains his wife without divorce.
This is our view in this issue. As for the issue of divorce without intention, this is a matter of disagreement among the scholars. Some scholars say that it is a condition for the occurrence of divorce that it be intended by the husband. If he utters the word, meaning he says "You are divorced" without intending divorce, then the divorce does not occur. Some scholars said that the divorce occurs unless he intended something else. If he intended something else, it does not occur. That is, if he says to his wife "You are divorced", she is divorced, unless he intends other than divorce, such as intending by his saying "You are divorced" to mean divorced from a bond or from a shackle, or the like. In that case, she is not divorced.
In this case, if he sues her before the judge, the judge will rule based on the wording, which is the separation of the wife, because the judge only rules based on what he hears. If a problem occurs between the husband and the wife, such as the husband saying, "I did not intend divorce," and this sometimes happens if the wife insists on the husband to divorce her and asks him for divorce and insists on it, some husbands say to her, "You are divorced," meaning "You are not bound by the ropes and not shackled by them." Here, a problem arises between the two: she says, "You divorced me," and he says, "I did not intend divorce." Is it better for the wife to take her husband to the judge, or is it better to take his intention and believe him so that the divorce does not occur, or is it better to believe him and take what he intended so that the divorce does not occur? We say: if the woman knows from her husband that he is a believer, mindful of Allah the Exalted and Majestic, and does not claim what is contrary to reality, then it is not permissible for her to take him to the judge. But if she knows that her husband is weak in faith, weak in fear of Allah the Exalted and Majestic, and it does not matter to him whether his wife is lawful for him or forbidden, then in this case, it is obligatory for her to take him to the judge so that the judge rules with separation, because the judge, as I mentioned, has before him only what appears from the husband's words, due to the saying of the Prophet (peace and blessings be upon him)
I only judge according to what I hear.
إنما أقضي بنحو ما أسمعThe questioner : May Allah bless you, O honorable Shaykh, for what you have clarified for us and for the honorable listening brothers.
Our honorable brothers, the honorable Shaykh Muhammad ibn Salih al-Uthaymeen, professor at the College of Sharia in Qassim and preacher and imam of the Great Mosque in Unaizah, answered your questions.
This day's episode has ended. Peace be upon you and Allah's mercy and blessings.