Answered by Shaykh Jamir Meah
Question: Assalamu alaykum
Can a man say to his wife: “If I commit adultery ever again I will be divorced from you.”? If he does so, are they divorced? And if it is the second divorce can he take his wife back without doing a new marriage contract?
Answer: In the Name of God, the Merciful and Compassionate
Thank you for your question. May Allah grant you the best of states and guide you to what is pleasing to Him.
Matters of divorce often require clarification of the details of the case. I am aware that English may not be your, or your husband’s first language, which makes assessing what was actually said difficult, especially because there is a discrepancy between the wording in the question summary and the main body of the question. There are also various factors in your question that require clarification and explaining to give a conclusive answer.
Ideally, it would be best to consult a reliable local scholar in such cases. However, given the fact that you have said you have not been able to find an answer to your question, I have laid out the relevant general rulings applying to divorce in the Shafi’i school in some detail, and conclude with a discussion on how these rulings apply to the specifics of your case, which should furnish you with what you need to know in your situation.
WORDS THAT EFFECT DIVORCE
Words that effect divorce are of two kinds, explicit (sareeh) and implicit (kinaayah)
Explicit statements are direct and unambiguous words of divorce, which cannot be understood in any way other way other than their outward purport. For example, ‘I divorce you’ or ‘You are divorced’. Explicit words do not require an intention for divorce to be effected.
Implicit statements are ambiguous words that allude to divorce, but can be interpreted in more than one way. For example, ‘You are free’ and ‘We are parted’. Implicit words require an intention for divorce to be effected.
In regards to statements such as, ‘I am divorced from / with you’. These come under the rulings of implicit and ambiguous words, therefore requiring an intention. This is because the recipient (mahal) of divorce is exclusive to the wife, as Imam Ibn Hajr states,
‘And if he [the husband] says ‘I am divorced from you’ and intends thereby divorcing her, meaning that divorce has transpired upon her, then she is divorced’ … ‘and it is not a condition that he says ‘from you’ [e.g. he says ‘I am divorced’ only]’ …’And if he does not intend divorce [by the above statement], then there is no consequence. This is because by attributing the divorce to other than its rightful place [the wife] it ceases to be explicit, therefore requiring the intention for it [the divorce] to be effected due to it being an implicit statement, as has been confirmed. And likewise, if he does not also intend attributing it [the divorce] to her [his wife], even if he intended the basic utterance of divorce or to divorce himself … she is not divorced according to the correct opinion.’ [Tuhfat al Muhtaj, see also Mughni al Muhtaj, Fayd Allahi al Malik]
Likewise, the husband’s statement of ‘We are divorced’ is also considered an implicit statement requiring an intention because the recipient of the divorce (‘we’) is ambiguous, as ‘we’ could mean himself and someone other than his wife, or another wife etc. However, if he meant by ‘we’, that divorce has transpired on both himself and the wife being addressed, then divorce is effected, as the correct recipient, the wife, is included in the ‘we’. *
THE VERB TENSE USED IN STATEMENTS OF DIVORCE
The verb tense used in statements of divorce also affects the outcome. Fiqh books deal with Arabic verb forms, which in real life must be applied to other languages. The examples below use English verbs as an example.
Tenses that do not require an intention for divorce to be effected
The Past tenses, such as ‘I divorced you’ or ‘I had divorced you’.
The Present Simple (expressing that an action is taking place right now), such as ‘I divorce you’.
The Present Perfect, such as ‘I have divorced you’.
The Active Participle in a sentence consisting of a subject and a predicate, such as ‘You are divorced’.
Tenses that require an intention for divorce to be effected
The Present Continuous, such as ‘I am divorcing you’ is deemed as an implicit statement in our school as it carries two possible interpretations, 1) that an action is taking place right now (in which case it is the same as ‘I divorce you’ above), and 2) referring to a future action, such as a promise or threat (w’ad). Therefore, if one intends by it that divorce is taking place now, then divorce is effected, while if it is said as a promise, threat, referring to what one will do, or if no intention was made at all, divorce will not be effected. *
The Verbal Noun (masdar) or Gerund alone, such as ‘Divorce’ (al Talaq / Talaq), ‘Divorcing’ ‘You are divorce’, or ‘Upon you divorce’ are all regarded as implicit statements, and therefore do not constitute a divorce unless one intends it.
Tenses that do not effect divorce regardless of intention
The Future tense, such as ‘I will divorce you’ constitutes a mere promise or threat, and therefore does not effect divorce, even if one intends it as such.
In statements where the Subject and the Verb is mentioned without the Object, such as in ‘I divorce / have divorced’ (without saying ‘you’), or the Predicate without the Subject, such as ‘Divorced’ (without ‘You are’ or ‘my wife is’). These utterances do not effect divorce even if one intends when saying them the missing words ‘you’ or ‘you are’, except if it is preceded by a question, request, or command.
[Tuhfa al Muhtaj, Mughni al Muhtaj, Hashiyat al Jamel, Iyaanat al Talibin]
DIVORCE BASED ON A CONDITION
A statement of divorce can be conditioned by an action or occurrence, for example, ‘if I eat this apple you are divorced,’ and ‘If you enter that house you are divorced.’ If the husband then eats the apple, or the wife enters the house, even after time has elapsed, divorce is effected. As long as he/she does not do the act, divorce is not effected.
In our school, if he / she does the action completely forgetting that divorce has been conditioned upon it, or is forced into doing the action, then divorce does not come into effect. [Mughni al Muhtaj]
POST MARITAL WAITING PERIOD
Below is a brief summary of waiting periods for different women:
There is no waiting period for a woman who was divorced before the marriage was consummated.
The waiting period of a woman who has menstrual periods and is not pregnant, is the completion of three intervals of purity between menses.
The waiting period of a woman who does not have menstrual periods (because of menopause or prepubescence, and not because of some external factor or without reason at all) is three lunar months.
The waiting period of a pregnant women is after birth.
TAKING BACK ONE’S WIFE
The husband can take back the wife, in a less-than three-fold divorce (i.e. after a first or second divorce), anytime within the waiting period and without a new marriage contract. If the waiting period has expired, then they must enter into a new marriage contract, if they both want to get married again.
To take a wife back (within the waiting period time and in a less-than three-fold divorce), the husband must do so verbally. There are two types of statements: explicit and implicit statements.
Examples of explicit statements are, ‘I take her back’, ‘I return her’, I retain her’. These do not require an intention.
An example of an implicit statement is, ‘I marry her’. Implicit statements require the intention of taking the wife back.
In our school, actions do not constitute taking back one’s wife, even if one intended by it as such. Therefore, touching the wife with desire or having sexual intercourse does not constitute taking back the wife (and is therefore sinful to do before verbally taking her back). In the Hanafi school actions are a valid way of taking the wife back.
Having witnesses are not required when taking back a wife, though it is a condition that the husband says it loud enough that he hear himself say the words.
[Tuhfa al Muhtaj]
YOUR SPECIFIC CASE
Having explained various aspects of divorce relevant to the question, we may now turn to your specific situation that you have described.
The main clauses in the statements of divorce you mention differ. In the question summary, you have written ‘if the husband says ‘If I commit zina we are divorced. While in your main question, you asked, ‘Can a man say to his wife: if I do acts of zina ever again I will be divorced with you.’
As explained above, the statement, ‘We are divorced’ is ambiguous, and therefore requires an intention of divorce. If the husband intended that you are divorced when saying it (whether you alone or both you and him), then divorce is effected by the fulfilment of the action that he has conditioned it upon (committing adultery in this case). If he did not intend that you are divorced, then divorce does not become effected, even if he does the action he has conditioned it on. The same ruling applies to if he said ‘I am divorced from/with you’ (without saying ‘will be’).*
If he said ‘I will be divorced from / with you’ then this is a threat or promise and does not constitute either an explicit or implicit statement of divorce, even if he intended it to be so, and regardless if he does the action or not.
If he said an implicit statement with the intention of divorce, but when doing the action that he conditioned it upon, he did so completely forgetting that he had conditioned divorce on it, then divorce does not come into effect. Obviously, if he did it knowingly then divorce will come into effect.
If your husband has divorced you for the second time and you are still in your waiting period, then he may take you back by the procedures I described above, and without a new marriage contract.
I hope the above information is enough for you to work out what applies to your case.
To you dear sister, I am concerned that your husband is possibly committing adultery, or at least mentioning to you the possibility of it. Even worse, he is conditioning your marriage on such a sinful act. I would ask you to evaluate your relationship with your husband and where your marriage is heading.
To our brother, your husband, I urge him to seriously reconsider his acts and his words, and to take stock of himself and his religion. Adultery is a major sin, requires sincere repentance, can have serious repercussions, and should therefore never be taken lightly. Furthermore, if he really wants to keep you, then he should not be hasty with statements of divorce.
Both of you should seek out a professional councillor and also qualified and helpful scholars if possible, who may be able to assist you in your situation.
I sincerely wish you all the best and that Allah straighten your affairs. May Allah make us of those who fear him in our words and deeds. And He alone knows best.
*The above information has been checked and confirmed by our teacher Shaykh Muhammad Ali al Khatib, the Mufti of Tarim, Yemen (may Allah preserve him).
[Shaykh] Jamir Meah
Shaykh Jamir Meah grew up in Hampstead, London. In 2007, he traveled to Tarim, Yemen, where he spent nine years studying the Islamic sciences on a one-to-one basis under the foremost scholars of the Ribaat, Tarim, with a main specialization and focus on Shafi’i fiqh. In early 2016, he moved to Amman, Jordan, where he continues advanced studies in a range of Islamic sciences, as well as teaching. Jamir is a qualified homeopath.