Words of divorce

29/11/2012| IslamWeb

Divorce is effectuated through any words that are customarily used to effectuate it and understood by both parties, and it also becomes effectuated through writing and the like.

Divorce through implicit words, does not become effectuated unless there is an intention for divorce. This is because an implicit statement could imply the meaning of divorce as well as other meanings, therefore determining the meaning in such a case is by the intention and purpose, like a man saying to his wife, "Go to your parents". It is not considered a divorce unless he has the intention of divorce. It is narrated on the authority of ‘Aa‘ishah, may Allah be pleased with her, that she said, “When the daughter of Al-Jawn was brought to the Messenger of Allah (as his bride) and he went near her, she said, “I seek refuge with Allah from you." He said: “You have sought refuge with The Great; return to your family." [Al-Bukhari] This implicit statement was regarded as divorce for he, intended divorce thereby.

Ka‘b ibn Maalik, may Allah be pleased with him, said, relating the story of his remaining behind from the Messenger of Allah, , in the Battle of Tabook, "There came to me the messenger of the Messenger of Allah and said, "Indeed! The Messenger of Allah commands you to keep away from your wife.’" He (Ka‘b, may Allah be pleased with him) said, "Should I divorce her or what should I do?" He said, "No! Keep aloof from her, and do not approach her." He said, “I said to my wife, "Go to your parents and stay with them until Allah The Almighty gives a decision in this matter." [Al-Bukhari and Muslim] in this case, that implicit statement was not regarded as divorce for Ka‘b, may Allah be pleased with him; he did not intend divorce thereby.

If a man talks to himself about divorce without uttering it, it would not be regarded as divorce, for Allah The Almighty has excused people for their self talk, no matter how sinful it might be. Hence, no change in what is permissible for him ensues from that (self talk). The Messenger of Allah, , said: “Indeed! Allah has overlooked whatever evil promptings which arise within the hearts of my Ummah (nation), as long as they do not act upon it or utter it.” [Al-Bukhari and Muslim]

The divorce of the insane or the extremely angry to the extent that if he is asked at that moment about somebody he knows whether he recognizes him, he would say that he does not recognize him and so on. This divorce is not effectuated according to the sound opinion of religious scholars, in view of the Hadeeth (narration) of the Messenger of Allah, : “There is no divorce nor emancipation during states where reason is obscured.” [Ahmad, Abu Daawood and Ibn Maajah] The meant state of irrationality is the permanent or temporary loss of capability of discernment, caused by madness, extreme anger, intoxication, and so on.

The divorce of the man who is drunk: According to the majority of religious scholars, the divorce is effectuated if he, under no necessity or Sharee’ah-approved excuse, drinks what causes him to lose his mind while he is aware that it is prohibited.

The divorce of the man who is under compulsion: It is not effectuated, in compliance with the Hadeeth of the Messenger of Allah, : "Indeed, Allah has excused, for my sake, my Ummah for (what they do by) mistake, forgetfulness and under compulsion." [Ibn Maajah] Moreover, whoever errs, i.e. makes a slip of the tongue by uttering the words of divorce, his divorce is not effectuated.

The divorce of a man who is joking or playing

A man who is joking and only intends the word without its consequential result. The man who is playful is he who only plays with words and does not intend the word nor its meaning, but he pronounces the words of divorce in response to the request of his wife playfully and jokingly. This is debatable among religious scholars. Some adopt the opinion that the divorce is effectuated depending upon the Hadeeth of the Messenger of Allah, : “There are three things which, whether undertaken seriously or jestingly, are treated as serious: marriage, divorce, and taking back (one’s wife after divorcing her).” [Ahmad, Abu Daawood, Ibn Maajah and At-Tirmithi] Other scholars were of the opinion that the divorce in such a case is not effectuated, confirming their argument with the Aayah (verse) in which Allah The Almighty Says (what means): {And if they decide on divorce…} [Quran 2:227] no doubt, making a decision requires the willingness to undertake such an action and to be aware of it. Furthermore, the Messenger of Allah, , said: "The (judgment of) deeds depends on intentions." [Al-Bukhari] Neither a man who is joking nor a man who is playful intend divorce in this context.