Does Separating After Deciding We Are Done Constitute Divorce?
Hanafi Fiqh
Answered by Mawlana Ilyas Patel
Question
We have been married for more than five years. 3 to 4 times during the marriage, we have separated. I’ve never uttered the words “you are divorced” or anything. Mostly, it has been a mutual agreement that is not working between us, or due to her circumstances in which she has an obligation to take care of her parents, and we have decided to separate to let her do that, so we have decided that we are done. But we always ended up getting back together. Does that constitute an express or allusive intention of divorce?
Answer
In the Name of Allah, the Most Merciful and Compassionate
I pray you are in good faith and health. Thank you for your question.
Unclear and indirect statements, such as “pack your bags and leave,” do not automatically result in a divorce. However, if the husband expresses an intent to divorce or if a discussion about divorce occurs, it can lead to an irrevocable divorce. In such a case, the wife will enter her waiting period (‘idda). If the couple wishes to reconcile, they can renew their marriage contract (nikah) either during the waiting period or afterward.
Divorce is of Two Types
a) Clear and plain words (sarih)
b) Allusive words (kinaya)
Clear words (Sarih) mean one clearly pronounces the word divorce or words derived from it, such as: “I divorce you” or “You are divorced.”
Allusive (Kinaya) means using words that are not exclusively prescribed for issuing divorce but allude and hint at it.
Clear and plain words affect divorce whether one intends divorce by them or not, while allusive words do not affect it unless one intends divorce by them or it is determined by the circumstance one is in.
[Ibn ‘Abidin, Radd al-Muhtar]
Refrain From These Types of Statements
Divorce is a serious matter and should only be executed after consultation with a scholar. Many people hastily say it and commit a grave sin simply because they didn’t follow the clear rules.
Remind yourself to refrain from these types of situations. The Messenger of Allah (Allah bless him and give him peace) encouraged us to say only the good, “Whoever believes in Allah and the Last Day, let him say that which is good or be silent.” [Bukhari]
Review Marriage Obligations
You should both review your obligations in marriage and agree to plan and have a conflict resolution process decided between yourselves. You may also take a free course with us on Islamic marriage. May Allah Most High create happiness and harmony in your marriage, amin.
I would like you to read through the valuable answers and links below. In sha Allah, you will receive guidance and direction.
Related
- Marriage and Divorce Archives – SeekersGuidance
- A Guide to Marriage: SeekersGuidance Reader – SeekersGuidance (answers, articles, and course links)
- Why Marriage Contracts & Agreements Matter Seminar by Shaykh Faraz Rabbani (youtube.com)
- Devil’s Tricks – The Path of Muhammad: Birgivi’s Manual of Taqwa Explained – Sh Faraz Rabbani – YouTube
- A Reader on OCD and Waswasa (Baseless Misgivings) (seekersguidance.org)
Why not begin your search for knowledge by signing up for a course on SeekersAcademy, like Keys to Successful Muslim Marriages from the Islamic Studies Curriculum, and build your way up by doing each course?
I pray this helps with your question.
Wassalam,
[Mawlana] Ilyas Patel
Checked and Approved by Shaykh Faraz Rabbani
Mawlana Ilyas Patel is a traditionally-trained scholar who has studied in the UK, India, Pakistan, Syria, Jordan, and Turkey. He started his early education in the UK. He went on to complete the hifz of the Quran in India, then enrolled in an Islamic seminary in the UK, where he studied the secular and ‘Aalimiyya sciences. He then traveled to Karachi, Pakistan. He has been an Imam in Rep of Ireland for several years. He has taught hifz of the Quran, Tajwid, Fiqh, and many other Islamic sciences to children and adults onsite and online extensively in the UK and Ireland. He taught at a local Islamic seminary for 12 years in the UK, where he was a librarian and a teacher of Islamic sciences. He currently resides in the UK with his wife. His interest is a love of books and gardening.
