Do These Statements Entail a Pronouncement of Divorce?

Hanafi Fiqh

Answered by Shaykh Yusuf Weltch

Question

Do the following statements constitute a pronouncement of divorce, keeping in mind that I suffer from misgivings (waswasa)?

  • “How can I live with some I don’t trust”;
  • “don’t come back as I need to decide what to do”;
  • “This is what you wanted,” etc.

Answer

In the Name of Allah, the Most Merciful and Compassionate

Neither of these statements nor do the scenarios that went along with them constitute a pronouncement of divorce.

Divorce is pronounced in one of two ways: direct pronouncement (sarih) or indirect pronouncement (kinaya). Both of these have their definitions [Maydani, al-Lubab fi Sharh al-Kitab]

Direct Pronouncement (Sarih)

Direct pronouncement is defined as those statements that are only used to pronounce a divorce, for example:

  • You are divorced;
  • I divorce you.

In such pronouncements the intention is irrelevant. Even if one said these words jokingly, the divorce takes effect. [Ibid.]

Indirect Pronouncement (Kinaya)

Indirect pronouncement is defined as statements that are not specific to divorce but do contain divorce as one of their possible interpretations, for example:

  • Start counting (possibly implying: count the days of your post-divorce waiting period);
  • Clear out your womb (possibly implying: you are divorced so start your waiting period to make sure you are not pregnant);
  • That’s one (possibly implying: that’s one divorce). [Ibid.]

Each of these have other possibilities alongside those mentioned. For this reason such a divorce does not take effect unless one intended divorce when making these statements or the situation stand in the place of an intention, such as if done in the state of anger or while discussing divorce. [Ibid.]

In the case that any of the above three statements are made along with the prerequisite condition – one revocable divorce takes effect. [Ibid.]

If any other dual meaning statements are made with the prerequisite intention- separational divorce takes effect according to the amount intended, either one or three which is the most severe divorce. [Ibid.]

Non-Recognized Statements

Any statements that are not explicit to divorce such as the direct pronouncement statements only count as divorce, if that was one’s intention. [Ibid.]

However, all the above statements are resolute affirmations, not thoughts, suggestions, desires, etc.. which are loose statements that are not resolute in their affirmation.

These do not count as either of the above types, and are not considered divorce at all. Examples of these are as follows:

  • I do know if I want to be with you anymore;
  • I don’t know if I can live with someone I don’t trust;
  • Go stay at your mother’s so I can think of what to do;
  • You’re the one who wants/wanted a divorce, etc.

Taking These Things Seriously

Divorce is not a light matter is Islam. The Messenger of Allah (may Allah bless him and give him peace) said, “The most abhorrent of the permissible to Allah is divorce.” [Abu Dawud]

The matter is evening more concerning seeing that divorce can take effect with just the slight slip of the tongue.

The Messenger of Allah (may Allah bless him and give him peace) said, “Three statements if said in seriousness, they take effect and if said is jest, they take effect: marriage, divorce, and revoking a divorce.” [Tirmidhi]

Rectifying Marital Discord

Since divorce is such a reprehensible thing despite its permissibility, the Sacred Law has laid down steps for couples to rectify their grievances.

Allah Most High says, “If you anticipate a split between them, appoint a mediator from his family and another from hers. If they desire reconciliation, Allah will restore harmony between them. Surely Allah is All-Knowing, All-Aware.” [Quran; 4:35]

In this verse is encouragement to seek outside help to settle marital disputes that the couple themselves are not able to settle. Furthermore, even the Messenger of Allah (may Allah bless him and give him peace) implemented this verse by appointing Sayyiduna Abu Bakr al-Siddiq to mediate between the Messenger and our Mother ‘Aisha (Allah be pleased with them). [Amiri, Bahja al-Mahafil]

All in all, the most important condition of this verse is that both parties have the desire and intention to reconcile. If both parties are committed to taking steps to rectify their marriage, Allah Most High promises to grant them harmony and restoration.

Advise

From your question, it is clear that you two are struggling with your marriage. Many times the issues that cause arguments are not really the major issues but merely the straw that breaks the camel’s back. In order to get to the real issues, respectful communication is necessary.

There are many options to assist you in this regard: counseling, books, mediation, etc…, but the most important thing is that you are both dedicated and committed to trying to reach a solution and reinstitute your mutual respect for each other public. [Sabuni, Rawa‘i al-Bayan]

Hope this helps
Allah knows best
[Shaykh] Yusuf Weltch
Checked and Approved by Shaykh Faraz Rabbani

Shaykh Yusuf Weltch is a teacher of Arabic, Islamic law, and spirituality. After accepting Islam in 2008, he then completed four years at the Darul Uloom seminary in New York where he studied Arabic and the traditional sciences. He then traveled to Tarim, Yemen, where he stayed for three years studying in Dar Al-Mustafa under some of the greatest scholars of our time, including Habib Umar Bin Hafiz, Habib Kadhim al-Saqqaf, and Shaykh Umar al-Khatib. In Tarim, Shaykh Yusuf completed the memorization of the Qur’an and studied beliefs, legal methodology, hadith methodology, Qur’anic exegesis, Islamic history, and a number of texts on spirituality. He joined the SeekersGuidance faculty in the summer of 2019.