Divorce that is not in accordance with the Sunnah: Does it take effect?
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The questioner : Most people today divorce in a manner that is not in accordance with the Sunnah, divorcing during menstruation...
The Shaykh : By Allah, we issue the ruling that as long as she is within the waiting period, the innovated divorce does not take effect.
The questioner : In all cases?
The Shaykh : In all cases.
The questioner : Because this is a sin; he committed a sin.
The Shaykh : Now, if he committed a sin, do we enable him to carry out this sin? Allah said: So if he divorces during menstruation, or during a period of purity in which he had intercourse with her, he has divorced her other than for the waiting period, and thus he falls under the saying of the Messenger (peace and blessings be upon him): Sahih Muslim 1718b However, we do not issue a ruling that the divorce is invalid in the case of a man whose options have become narrow, who then comes and says, or a person comes to seek a ruling and says, "By Allah, I divorced this wife of mine for the third time, or I divorced her three times, but I will tell you about my case. Please, the first time was twenty years ago when I divorced her while she was menstruating, then ten years ago I divorced her during a period of purity in which I had intercourse with her, and then I divorced her a year ago while I was in a state of extreme anger. Give us a ruling." We would rule, if the matter were normal, that there is no divorce upon him, because the first was during menstruation, the second was during a period of purity in which he had intercourse with her, and the third was in a state of extreme anger. He wants us to give him this ruling, wanting us to rule that this woman, who has become divorced from him, is his wife and that there is no divorce upon him. This is not possible; we will never issue this ruling, because his divorce during menstruation twenty years ago was a divorce in which he was fully committed, fully committed, and even if her waiting period had ended at that time, yes, and even if she had married after her waiting period ended at that time, would it be denied or not?
The questioner : It would not be denied.
The Shaykh : It would never be denied, and the same applies to the second divorce and the third. But when his options became narrow, he came to us saying, "By Allah, my first divorce was innovated, the second was innovated, and the third was without awareness." And like this is what Shaykh 'Abdullah Aba Batin (may Allah have mercy on him) mentioned: that when they divorce three times, the husband comes and says, "By Allah, I divorced three times, but one of the witnesses is not the witness present; the second witness smokes." Why? For what reason? So that he becomes unjust, and if he is unjust, the marriage is the testimony of one person and is not valid. If the marriage is not valid, the divorce is not valid. He did not use the example of the smoker, but from my side, this is what he said: that some of them divorced three times and their options became narrow, so he came to think about the contract, seeking for it to become a defective contract, so that since it was not built upon what is valid, it is invalid.
The questioner : The time is up, O Shaykh. The time is up, O Shaykh.
The Shaykh : By Allah, we issue the ruling that as long as she is within the waiting period, the innovated divorce does not take effect.
The questioner : In all cases?
The Shaykh : In all cases.
The questioner : Because this is a sin; he committed a sin.
The Shaykh : Now, if he committed a sin, do we enable him to carry out this sin? Allah said:
So divorce them for their waiting periods
فطلّقوهن لعدّتهنHe who did any act for which there is no sanction from our behalf, that is to be rejected.
من عمل عملا ليس عليه أمرنا فهو ردThe questioner : It would not be denied.
The Shaykh : It would never be denied, and the same applies to the second divorce and the third. But when his options became narrow, he came to us saying, "By Allah, my first divorce was innovated, the second was innovated, and the third was without awareness." And like this is what Shaykh 'Abdullah Aba Batin (may Allah have mercy on him) mentioned: that when they divorce three times, the husband comes and says, "By Allah, I divorced three times, but one of the witnesses is not the witness present; the second witness smokes." Why? For what reason? So that he becomes unjust, and if he is unjust, the marriage is the testimony of one person and is not valid. If the marriage is not valid, the divorce is not valid. He did not use the example of the smoker, but from my side, this is what he said: that some of them divorced three times and their options became narrow, so he came to think about the contract, seeking for it to become a defective contract, so that since it was not built upon what is valid, it is invalid.
The questioner : The time is up, O Shaykh. The time is up, O Shaykh.