Does a Divorce Need to Be Uttered in Front of Witnesses to Be Valid?
Answered by Shaykh Jamir Meah
Question: Assalamu alaykum
I am not sure if I am really divorced. My husband uttered these words but I think it should have been in front of witnesses. We signed the divorce papers and I also made my husband call me with his father and utter the words of divorce over the phone.
Can I remarry? Am I really divorced?
Answer: In the Name of God, the Merciful and Compassionate
Dear sister, rest assured that you are, without a shadow of a doubt, divorced from your ex-husband and are free to remarry. The thoughts that you are having are nothing more than the devil playing tricks, and his whispering should be tossed aside and never given any attention.
To help you get through this, I have detailed some advice and explanation of the rulings relevant to your situation, with textual evidence, so you can be sure that what you are being told is correct. Sometimes understanding the working knowledge of a ruling (if it already has not been explained to you) can bring peace to one’s heart, rather than a simple answer of validity or invalidity.
You mention two separate occasions when divorce was made; one when signing the divorce papers, the other when he spoke to you on the phone and clearly pronounced the divorce.
WRITING/SIGNING WORDS OF DIVORCE
Writing explicit or implicit words of divorce does not require witnesses.
In the Shafi’i school, written words of divorce simply require that the husband intends divorce when writing the words. [Tuhfa al Muhtaj, Mughni al Muhtaj].
In the Hanafi school, clear and unambiguous writing alone constitutes a divorce. [Bada’i al-Sana’i]
In both schools, this also applies to signing legal paper work written by a third party (even if non-Muslim, and even through the courts), and when signed by the husband on divorce papers if, a) the husband has understood the contents of the papers and has no objection and b) He intends by his signature confirmation of divorce (in the Shafi’I school).
Imam Ibn Abidin states, ‘If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing.” (Radd al-Muhtar).
It is clear from what you wrote that your ex-husband had no objection to signing the divorce papers and that his signature indicated full consent and intention to issue the divorce. Therefore, according to both the legal schools, one divorce would have been affected.
DIVORCE BY PRONUNCIATION
In both the Shafi’i and Hanafi Schools, explicit words of divorce do not require an intention (such as, ‘I divorce you’), while allusive words require an intention for divorce to be effected. [Tuhfa al Muhtaj, Radd al Muhtar]. This can be done in person or on the phone, provided that one is certain the person on the phone is the husband.
It is clear that it was your husband on the phone, and he used explicit words to issue the divorce (which as we mentioned does not require an intention). While your father-in-law being witness is not a condition for the validity of the divorce to take place, it does mean that you’re certain it was your husband speaking on the phone.
We have already stated that the divorce that counts was already issued through the legal process. However, should it be necessary for you to feel at peace, the explicit pronunciation on the phone was an absolute and final confirmation that your marriage is annulled, and this is in agreement with all four legal schools.
WASWASA (Baseless Misgivings)
There is nothing more satisfying to the devil than causing doubt in the heart of a believer, and one of the ways he does this is through sewing discord in the matters of marriage and procreation, which are the foundation and fortification of every Muslim society. He is either trying to get us to abandon our chastity and corrupt our lineage through lewdness, or at the least, cause us to doubt in them.
One of his wretched names, is al Khanas, the one who whispers and draws away. Allah Most High tells us this in Surah al Nas, when He orders us to seek refuge ‘From the mischief of the Whisperer (of Evil), who withdraws (after his whisper). (The same) who whispers into the hearts of Mankind, Among Jinns and among men.’ [114:4-6]’.
Therefore, recognise that this is what is happening, and do not give him an inch. I will discuss below some ways to do this.
Know the ways the devil may come at you: Satan will come at you from every single angle possible, causing doubt wherever there is a door open for it. The following is typical things the vile creature will whisper to you and make you doubt:
Perhaps I didn’t tell the scholars everything or left out something?
Perhaps the scholars are just giving a quick answer and haven’t really understood everything or perhaps they overlooked something in my case?
Perhaps the scholars I asked are not qualified and another scholar will give another ruling?
Perhaps my ex-husband’s intention was not clear or definite?
What will people think of me or say about me if I remarry and have children?
What if I am committing sin by remarrying?
This is all nonsense! If any of these come to your mind, seek refuge in Allah from the devil and ‘Alhamdulillah’ abundantly. There is nothing more the devil hates then when one is grateful and pleased with his Lord.
BUILDING YOUR DEFENSE AGAINST THE DEVIL:
Get on with life: Take steps to get remarried if that is what you want to do and don’t look back. Once life starts moving for you and in society with your new family, Satan would have failed and leave you. By getting on with life with the very thing that he is causing doubt in and holding you back from, the door will be shut. Maintain this by fulfilling your obligations to God and being grateful to Him.
Stay busy: Keep busy and don’t spend too much time on your own or at home alone. Satan sewing doubts in your mind about your marriage and divorce is only part of a bigger picture. What he wants is you to lose hope in God, and ultimately leading you to losing faith in God. Keeping busy productively drowns his feeble whisperings.
Open spaces: Go to open spaces like parks which will help clear your mind. Go with friends and family who are optimistic and good company.
Tahajjud: Try to wake up before Fajr and make earnest du’a to Allah to fortify you against the devils whispering. Do not say ‘if I am doing wrong by remarrying then forgive me’ etc., because this will only continue your doubts. You’re not doing anything wrong, and you know that yourself. Rather, ask Allah to give you the strength to be a firm believer and a pious servant to Him and that you surrender all your affairs to Him alone, and ask for a good and righteous husband and pious children.
Qur’an, dhikr and worship: Read a set amount of Quran each day and set amount of dhikr at. The benefits are innumerable, but among them is that they keep devils away, fortify one’s home, and most importantly bring peace to one’s heart. Allah most high tells us, ‘Those who believe, and whose hearts find satisfaction in the remembrance of Allah: for without doubt in the remembrance of Allah do hearts find satisfaction’ [13:28].
Often, the devil gets a foot in the door and is allowed to whisper because there was an open gap for him to do so in the first place. Fortify yourself through observing your obligatory worship and what you can of the supererogatory acts, especially dhikr, and avoid sins or continuing in any sin.
Before sleeping: Recite Surat Ikhlas and Al Falaq and al Nas three times and blow on yourself when you go to sleep at night. It was narrated from ‘Aa’ishah (may Allah be pleased with her) that when the Prophet (peace and blessings be upon him) went to bed every night, he would hold his hands together and blow into them, and recite into them al Ikhlas, al Falaq, and al Nas. Then he would wipe his body, starting with his head and face and the front of his body, and he would do that three times. [al Bukhari].
Al Ta’awudh: Recite often, أعوذ بالله من الشيطان الرجيم (I seek refuge in Allah from the cursed Satan) whenever the doubts occur.
You may find the following supplications useful. Perhaps try reciting them after each prayer, or any other convenient time.
Seeking refuge in Allah from evil
أَعُوْذُ بِكَلِمَاتِ اللهِ الْتَّامَّاتِ مِنْ شَرِّ مَا خَلَقَ
I seek refuge in the Perfect Words of Allah from the evil of what He has created
Seeking protection from the devils and jinn
أَعُوذُ بكَلِمَاتِ اللهِ التَّامَّاتِ الَّتِي لَا يُجَاوِزُهُنَّ بَرٌّ ولَا فَاجرٌ مِنْ شّرِّ مَا خَلقَ، وبَرَأَ وذَرَأَ، ومِنْ شَرِّ مَا يَنْزِلُ مِنَ السَّمَاءِ وِمنْ شَرِّ مَا يَعْرُجُ فيهَا، ومِن شَرِّ مَا ذَرَأَ في الأَرْضِ ومِنْ شَرِّ مَا يَخْرُجُ مِنْهَا، وِمنْ شَرِّ فِتَنِ اللَّيْلِ والنَّهارِ، ومِنْ شَرِّ كُلِّ طارِقٍ إِلَّا طَارِقاً يَطْرُقُ بخَيْرٍ يَا رَحْمَنُ
I take refuge within Allah’s perfect words which no righteous or unrighteous person can transgress, from all the evil that He has created, made and originated. (I take refuge) from the evil that descends from the sky and the evil that rises up to it. (I take refuge) from the evil that is spread on Earth and the evil that springs from her, and I take refuge from the evil of the tribulations of night and day, and the evil of one who visits at night except the one who brings good, O Merciful One.
When feeling helpless regarding matter:
حسبي اللهِ ونعم الوکيل
Allah is my sufficiency, and how perfect a benefactor (Abu Dawud). This invocation can be is best repeated 3 times or more in odd counts.
You should also ensure that you are saying the supplications before going to the bathroom, as bathrooms are spaces where devils are more likely to cause mischief:
Entering the bathroom:
اللَّهُمَّ إِنِّي أَعُوذُ بِكَ مِنَ الْخُبُثِ وَالْخَبَائِثِ
O Allah, I seek refuge with you from all evil and evil-doers.
NOT YOUR RESPONSIBILITY NOW
Finally, remember that Allah, Most High, tells us, ‘On no soul doth Allah Place a burden greater than it can bear’ [2.286]. You have done all that is in your capacity as an individual to find out the ruling in this situation (more than once and to different scholars!). There is nothing more in your capacity to do other than submit to what has been said and move on. Religion, nor life, is not meant to get to the point where you become immobile and unable to move forward. It is a practical religion, so once you have taken the appropriate steps to find out the ruling and been given advice, then you move on with no regrets and no turning back.
Furthermore, no qualified scholar will tell you to get remarried if he wasn’t absolutely certain of the ruling, otherwise he is liable to be being asked about it, and the consequences of such an answer, himself. When a clear and definite answer is given, the scholar takes on the responsibility for that answer. Therefore, there is absolutely no duty or accountability on your behalf now, either in this life or the next.
I wish you every happiness, and that Allah takes away your doubts, and grants you with a loving and pious husband and family, insha’Allah.
Please keep us in your dua’s.
[Shaykh] Jamir Meah
Checked and approved by Shaykh Faraz Rabbani
Shaykh Jamir Meah grew up in Hampstead, London. In 2007 I travelled to Tarim, Yemen, where I spent nine years studying the Islamic sciences on a one-to-one basis under the foremost scholars of the Ribaat, Tarim, with my main specialization and focus on Shafi’i fiqh. In early 2016, I moved to Amman, Jordan, where I continue advanced study in a range of sciences, as well as teaching. Away from the Islamic sciences, I am a qualified Homeopath, and run a private clinic in Amman.