Is witnessing required for the pronouncement of divorce to take effect?
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The questioner : ... regarding divorce, I wish you would speak to us about it, O Shaykh, specifically the conditions for the pronouncement of divorce to take effect. That is, is it a condition for the pronouncement of divorce to take effect that it be witnessed immediately, or does one pronounce the divorce and then witness it? May Allah reward you. If he wishes?
The Shaykh : If he wishes to pronounce the divorce.
The questioner: Yes.
The Shaykh : Rather, if he pronounces the divorce and it is not witnessed, we do not consider it a divorce in accordance with the Sunnah. The meaning of this statement, with complete clarity, is that this divorce remains suspended with no effect until two just witnesses testify to his pronouncement of divorce, because this is established in Sunan Abu Dawud from 'Imran ibn Husayn (may Allah be pleased with him): "It is from the Sunnah that the divorce be witnessed." This is from the perspective of transmitted evidence.
The questioner: Yes.
The Shaykh : And from the perspective of reasoning and intellect, I believe, after relying on the transmitted evidence, that divorce is more dangerous than marriage. If the Wise Lawgiver, with His perfect wisdom, and in order to distinguish marriage from fornication, made known conditions such as the permission of the guardian and the presence of witnesses to be a lawful marriage, which is a building and foundation, then I see that divorce, which is the demolition of this building, and especially since it may result in very serious consequences if the divorced woman has been blessed by Allah with children and offspring from him, is undoubtedly at the height of danger. So it was the wisdom of legislation to place stumbling blocks, barriers, and obstacles before the lawful divorce, so that when the one pronouncing the divorce wishes to carry it out, he gathers all the conditions that the Wise Lawgiver has stipulated, so that he does not regret his pronouncement of divorce, and then it is said, "There is no time for regret." As long as divorce is more dangerous than marriage, and witnesses are required for marriage, it is even more so, and even more so, that witnesses are required for divorce, which is the demolition of marriage. And as I began my speech just now, I say this with this theoretical, rational justification, after relying on the scriptural evidence. Otherwise, we do not permit building rulings on mere opinion and reasoning, especially when there is a ruling like divorce that the Lawgiver has surrounded with many conditions or texts, and then there is no text among those texts that supports this viewpoint in this case; we do not say it. But as long as we have relied on the transmitted evidence, there is no harm in combining intellect with transmitted evidence. This is the basis upon which the Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) established his well-known book, The Agreement of Authentic Transmitted Evidence with the Explicit Transmitted Evidence.
The student : ... .
The Shaykh : Ah, yes. Well, this is my answer to what you asked. O Allah, we need some water, O Abu 'Abdillah. O Allah, yes.
The questioner : ... .
The Shaykh : ... .
The Shaykh : If he wishes to pronounce the divorce.
The questioner: Yes.
The Shaykh : Rather, if he pronounces the divorce and it is not witnessed, we do not consider it a divorce in accordance with the Sunnah. The meaning of this statement, with complete clarity, is that this divorce remains suspended with no effect until two just witnesses testify to his pronouncement of divorce, because this is established in Sunan Abu Dawud from 'Imran ibn Husayn (may Allah be pleased with him): "It is from the Sunnah that the divorce be witnessed." This is from the perspective of transmitted evidence.
The questioner: Yes.
The Shaykh : And from the perspective of reasoning and intellect, I believe, after relying on the transmitted evidence, that divorce is more dangerous than marriage. If the Wise Lawgiver, with His perfect wisdom, and in order to distinguish marriage from fornication, made known conditions such as the permission of the guardian and the presence of witnesses to be a lawful marriage, which is a building and foundation, then I see that divorce, which is the demolition of this building, and especially since it may result in very serious consequences if the divorced woman has been blessed by Allah with children and offspring from him, is undoubtedly at the height of danger. So it was the wisdom of legislation to place stumbling blocks, barriers, and obstacles before the lawful divorce, so that when the one pronouncing the divorce wishes to carry it out, he gathers all the conditions that the Wise Lawgiver has stipulated, so that he does not regret his pronouncement of divorce, and then it is said, "There is no time for regret." As long as divorce is more dangerous than marriage, and witnesses are required for marriage, it is even more so, and even more so, that witnesses are required for divorce, which is the demolition of marriage. And as I began my speech just now, I say this with this theoretical, rational justification, after relying on the scriptural evidence. Otherwise, we do not permit building rulings on mere opinion and reasoning, especially when there is a ruling like divorce that the Lawgiver has surrounded with many conditions or texts, and then there is no text among those texts that supports this viewpoint in this case; we do not say it. But as long as we have relied on the transmitted evidence, there is no harm in combining intellect with transmitted evidence. This is the basis upon which the Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) established his well-known book, The Agreement of Authentic Transmitted Evidence with the Explicit Transmitted Evidence.
The student : ... .
The Shaykh : Ah, yes. Well, this is my answer to what you asked. O Allah, we need some water, O Abu 'Abdillah. O Allah, yes.
The questioner : ... .
The Shaykh : ... .
Source
www.al-albany.com
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