Ruling on a man who divorced his wife and then traveled for a long period: Did the divorce take effect?
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The questioner : In the name of Allah, the Most Gracious, the Most Merciful. One of the brothers asked about a man who divorced his wife, throwing the words of divorce at her, and left the country where he lived for another country. More than ten years have passed since his departure. We know that he married her with a written marriage contract here, but when he divorced her, he did not divorce her in writing. Is she considered divorced according to the Shari'ah? Will she inherit from him if he dies, or not? Is she required to observe the waiting period, inherit from him, and so on?
The Shaykh : The answer to this question depends on the form of the divorce claimed and its consequences. You say a man divorced his wife and then traveled. Well, was this divorce considered a divorce between the two spouses?
The questioner : It is according to his intention; the matter is concluded.
The Shaykh : It is according to his intention, but did he, for example, have knowledge that this was a divorce and that it had taken effect? Or, if he did not have such knowledge, did he consult someone he believed to be knowledgeable, and that person issued a ruling that this was a divorce? Or did he simply utter the words and leave? The issue is answered in two ways. If he knew it was a divorce within the limits of his knowledge—whether he was a student of knowledge, a scholar or shaykh among the scholars, or neither of these but he asked someone he believed to be knowledgeable and that person told him it was a divorce—then his wife is divorced. Then, when he traveled away from his divorced wife, she becomes free in the eyes of the Shari'ah, meaning she is allowed to marry someone else. This is because he can take her back as long as she is in the waiting period. Once the waiting period ends, she becomes free, meaning he cannot force her to return to his protection, just as he would not be able to do so if he tried to do it during the waiting period. Is that clear?
The questioner : It is clear.
The Shaykh : If the word "divorce" is considered valid by them, then it is a divorce. So you know the answer. No, he did not think it was a divorce based on knowledge or a fatwa. But if it was based on knowledge or a fatwa, then the fatwa stands, as they say, "with its pros and cons," and she has become free after the long period has passed, without waiting, and she is allowed to marry.
The questioner : Do you mean by that that the Shari'ah judge can separate them in this case?
The Shaykh : Automatically, as they say today, the separation has taken place.
The Shaykh : The answer to this question depends on the form of the divorce claimed and its consequences. You say a man divorced his wife and then traveled. Well, was this divorce considered a divorce between the two spouses?
The questioner : It is according to his intention; the matter is concluded.
The Shaykh : It is according to his intention, but did he, for example, have knowledge that this was a divorce and that it had taken effect? Or, if he did not have such knowledge, did he consult someone he believed to be knowledgeable, and that person issued a ruling that this was a divorce? Or did he simply utter the words and leave? The issue is answered in two ways. If he knew it was a divorce within the limits of his knowledge—whether he was a student of knowledge, a scholar or shaykh among the scholars, or neither of these but he asked someone he believed to be knowledgeable and that person told him it was a divorce—then his wife is divorced. Then, when he traveled away from his divorced wife, she becomes free in the eyes of the Shari'ah, meaning she is allowed to marry someone else. This is because he can take her back as long as she is in the waiting period. Once the waiting period ends, she becomes free, meaning he cannot force her to return to his protection, just as he would not be able to do so if he tried to do it during the waiting period. Is that clear?
The questioner : It is clear.
The Shaykh : If the word "divorce" is considered valid by them, then it is a divorce. So you know the answer. No, he did not think it was a divorce based on knowledge or a fatwa. But if it was based on knowledge or a fatwa, then the fatwa stands, as they say, "with its pros and cons," and she has become free after the long period has passed, without waiting, and she is allowed to marry.
The questioner : Do you mean by that that the Shari'ah judge can separate them in this case?
The Shaykh : Automatically, as they say today, the separation has taken place.
Source
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