The Ruling on Divorce Without Witnesses
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Our brother asks: What do we say to those who hold that divorce does not take effect merely by the utterance of the words if two just witnesses are not present to testify to the divorce, and who consider it permissible to continue the marital life as if nothing had happened? They base their understanding and ruling on the statement of 'Ata (may Allah have mercy on him), who said: "It is not permissible in marriage, divorce, or intercourse except with two just witnesses."
Answer: The position of the scholars is that divorce takes effect even if no witnesses are present; witnessing is a recommended practice (sunnah). Allah (Glorified and Exalted is He) spoke about divorce in many verses and did not make witnessing a condition, and so did His Prophet (peace and blessings be upon him). It is narrated from 'Imran ibn Husayn (may Allah be pleased with him) that he said:Sunan Ibn Majah 2025Sahih (Darussalam) and he said: .
This is cited as evidence and argument that it is prescribed to witness the divorce, because a man may divorce and then deny it. If he witnesses the divorce, it helps him establish the truth and prevents him from returning to falsehood by denying the divorce. Thus, witnessing helps him fulfill the right and establishes the right for the woman. It is a recommended practice (sunnah) to witness the divorce and to witness the taking back (raj'ah). This is also argued from His saying (Glorified and Exalted is He) : [Al-Talaq:2]. This verse has been interpreted as referring to witnessing the divorce and as referring to witnessing the taking back, and the verse allows for both, so both are prescribed: it is prescribed to witness the divorce and it is prescribed to witness the taking back. However, this is not a condition. The taking back is valid even if not witnessed, provided the wife acknowledges it and he makes her hear the taking back during the waiting period ('iddah).
Likewise, divorce takes effect even if not witnessed, but doing so contradicts the prescribed practice; it contradicts what is ought to be done. Yes.
The presenter: May Allah reward you. So, is the statement of those people erroneous?
The Shaykh: Yes, the stronger view is the opposite. Yes.
The presenter: May Allah reward you.
Answer: The position of the scholars is that divorce takes effect even if no witnesses are present; witnessing is a recommended practice (sunnah). Allah (Glorified and Exalted is He) spoke about divorce in many verses and did not make witnessing a condition, and so did His Prophet (peace and blessings be upon him). It is narrated from 'Imran ibn Husayn (may Allah be pleased with him) that he said:
Bring people to witness your divorcing her and taking her back.
أشهد على طلاقها وعلى رجعتهاWhoever divorces without witnessing has divorced without the recommended practice
من طلق في غير إشهاد فقد طلق بغير السنThis is cited as evidence and argument that it is prescribed to witness the divorce, because a man may divorce and then deny it. If he witnesses the divorce, it helps him establish the truth and prevents him from returning to falsehood by denying the divorce. Thus, witnessing helps him fulfill the right and establishes the right for the woman. It is a recommended practice (sunnah) to witness the divorce and to witness the taking back (raj'ah). This is also argued from His saying (Glorified and Exalted is He) :
And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah
وَأَشْهِدُوا ذَوَي عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِLikewise, divorce takes effect even if not witnessed, but doing so contradicts the prescribed practice; it contradicts what is ought to be done. Yes.
The presenter: May Allah reward you. So, is the statement of those people erroneous?
The Shaykh: Yes, the stronger view is the opposite. Yes.
The presenter: May Allah reward you.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.