Continuation of the discussion on the question: Is witnessing in divorce obligatory?

The questioner : You mean the condition itself, the obligation in divorce?

The Shaykh : Perhaps you mean the reverse, because every condition is obligatory, but not every obligatory thing is a condition. You are saying, does condition mean obligation? That is a shallow question. But if you said, does obligatory mean condition?

The questioner : That is the intention, first of all.

The Shaykh : Stay with me. We did not say here that it is obligatory or not obligatory. He said that it is from the Sunnah. The meaning of the Sunnah is the methodology, just as divorce during menstruation and the other known conditions in divorce. So it is necessary that his divorce be according to the Sunnah, that he witnesses to it. But here something from jurisprudence must be applied, which is that as long as this noble Companion tells us that witnessing in divorce is from the Sunnah, that means that divorce is a very difficult matter, because in the end it means destroying this structure that we built. We observe this meaning in this phrase when he says, "So-and-so built a home with his wife," because he actually built a house, he laid a foundation. This structure that he established through marriage was with conditions, including the testimony of the righteous. So it should not be that this house is destroyed by a foolish word that comes out of his mouth. And that is why the divorce of the angry one is not effective, and that is why the divorce of the coerced one does not take place, and so on. Therefore, it was a condition of the Sunnah-compliant divorce to consider precise and very precise circumstances. Even if there is disagreement on whether if the divorcer neglects one of those conditions, does it prevent the divorce from taking place or not? But he becomes sinful. Why were those obligations imposed? So that the husband does not rush to divorce his wife, such that it happens and he regrets it, and there is no time for regret. The truth is that the Wise Lawgiver wants, from those conditions, and let us say from those obligations, gathering between the opinions and schools of thought, to hold back the reins of the one who wants to divorce. For example, he says, do not divorce her while she is menstruating, with the disagreement on whether if he divorces her while she is menstruating, the divorce takes place or not. We are not in that context. Do not divorce her while she is menstruating. He quarreled with his wife, he went out and came back and said to her, "You are divorced." Every time he is calm, he is like this, Shaykh, he is forbidden, like this, Shaykh, and so on. Islam says to him, "Slow down. Look, is your wife menstruating or in a state of purity?" No, by Allah, she is menstruating. He holds back from divorce. Why? Out of fear of Allah, because Allah, through the tongue of His Prophet, commanded him not to divorce a menstruating woman, meaning He forbade him to divorce a menstruating woman. Until when? Until she becomes pure. And most of you are married men. The woman hardly becomes pure from here until she has her period from here. I want to divorce her. You must have intercourse with her if you want to divorce her. If he holds back his self-control a second time, he does not succeed until she becomes pure from her period so that he can have intercourse with her. If you want to divorce her, do not have intercourse with her. He cannot control his nerves, especially if he is one of the strong young men. In that case, what is necessary? He must be patient. Until when? Until she has her second period. Does he divorce her? He does not divorce her, because it is forbidden. She must enter the second state of purity. Is it permissible to divorce her in the second state of purity? He said, no, because it is preceded by a state of purity in which he had intercourse with her. So in the third? Look, all of this, as they say, puts a stick in the wheel so that the matter, which is divorce, does not proceed. From that also is witnessing. A man, let us assume, and this is very rare, a man, let us assume, is sane, long-headed, and the matter of divorce has reached him. He has gone around with the measure, he can no longer hold back, he wants to divorce. But the Shari'ah looked and said to him, "She is menstruating, she became pure, you had intercourse with her." It said to him, "Be patient until the end of what we mentioned just now." Apply all these conditions, and there is no longer any barrier preventing him from divorcing. It says to him, "Get two witnesses." He goes to look for two witnesses. Perhaps Allah guides him and calms him, and the matter is over. Why? The destruction of a home, the destruction of a home, does not happen with this ease. And perhaps this amount is sufficient, O Abu Maher.

The questioner : We understood this, but if he divorces without these...

The Shaykh : The divorce does not take place; it remains suspended except with witnessing. And Glory is to You, O Allah, with Your praise.
Al-Halabi : But Shaykh, there is a point here so that the speech is not understood in a way other than its face. You sometimes, Shaykh, inform us of a precious benefit, which is that if a judge pronounces a divorce that is not witnessed, it must be pronounced.

The Shaykh : Correct. Any divorce pronounced by a Muslim judge, it is not permissible for the divorcer to move from one person to another, perhaps he will find an exit. And that is why when they ask me, I say, "My brother, did you extract a fatwa?" He says, "No." I do not issue a fatwa for him. But if he says, "Yes," what do you issue a fatwa for? By Allah, the divorce has taken place. It is over, the divorce has taken place.