Question # 367: My father once asked me to threaten my wife with divorce as she was not coming back to our house. I phoned my wife in front of my father and told her, ‘Take divorce then’ after she said that she would not return. My intention was neither to divorce her nor to threaten her and I had informed her beforehand that I would only be pretending in front of my father. Did this constitute divorce?

bismi-llahi r-raḥmani r-raḥīm,

Assalamu ‘laikum warahmatullahi wabarakatuh,

All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).

Dear questioner,

First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.

Shorter Answer: A man should not use divorce every time there is an argument between him and his wife, because of the negative consequences that result from divorce. The Prophet (صلى الله عليه و سلم) disapproved such behavior and regarded this as toying with the Commandments of Allah (سبحانه و تعالى). Nevertheless, your case is that of unintentional non-affirmative divorce. The majority of fuqaha’ are of the view that the divorce counts as such unless both the following conditions are met: a) the person intends it and b) uses wording that is indicative of divorce. Consequently, your case does not constitute divorce because there was no intent and your statement was not an affirmative one, lacking firm determination to divorce.

Long Answer: A man should not use divorce every time there is an argument between him and his wife, because of the negative consequences that result from divorce. Many men take the matter of divorce lightly and every time there is an argument between them and their wives, they swear to divorce them, and every time they have a disagreement with their friends, they swear to divorce their wives, and so on. This is a kind of toying with the Book of Allah, because the Messenger of Allah (صلى الله عليه و سلم) regarded the one who divorced his wife three times in one go as toying with the Book of Allah. So how about one who makes divorce his habit, and every time he wants to stop his wife doing something or urge her to do something, he swears that he will divorce her? An-Nasa’i narrated that Mahmoud ibn Labeed said: The Messenger of Allah (صلى الله عليه و سلم) was told about a man who divorced his wife three times in one go. He got up angrily and said: “Will the Book of Allah be toyed with when I am still among you?” A man stood up and said: “O Messenger of Allah, shall I kill him?” (Al-Haafiz said: The men of its isnad are thiqaat (trustworthy); classed as sahih by al-Albani in Ghaayat al-Maraam)

[Nevertheless,] Ibn al-Qayyim (may Allah have mercy on him) said: “Divorce does not count as such unless the person intends it and uses wording that is indicative of divorce. If one of these two factors is missing, then no divorce takes place. Words and phrases may be divided into those that are explicit and those that are implicit…” (Zaad al-Ma‘ad)

[Next,] when a man says to his wife, “If you do such and such then you are divorced,” or, “If you do not so such and such then you are divorced,” this is a conditional divorce. The majority of fuqaha’ are of the view that this divorce counts as such when the condition mentioned is fulfilled. Some of the scholars – and this was the view favored by Shaykh al-Islam Ibn Taymiyah and others – were of the view that this condition is subject to further discussion, and it depends on the intention of the one who said it. If he meant what is intended by the oath, which is to encourage someone to do something, or to stop someone from doing something, or to affirm something or deny something, then it comes under the ruling on oaths and no divorce takes place, but he must offer the expiation for breaking an oath when it is broken. If he intended thereby to divorce his wife, then she is divorced when the condition is fulfilled. His intention is known only to Allah from Whom no secret is hidden. So, the Muslim should beware of trying to deceive his Lord and of deceiving himself.

The Standing Committee was asked about a man who said to his wife: “Come with me or you are divorced,” and she did not go with him. Does that count as a divorce? They replied: If you did not intend that as a divorce and you only wanted to urge her to go with you, then that does not count as a divorce, but you have to offer the expiation for breaking an oath (kafaarat yameen) according to the more correct scholarly view. If you intended that to count as a divorce if she did not respond to you, then that counts as one divorce. (Fataawa al-Lajnah al-Daa’imah)

(The above reply is based on various answers by Shaykh Muhammad Saalih al-Munajjid on the topic)

To sum up, your case is that of unintentional non-affirmative divorce. As stated above, the majority of fuqaha’ are of the view that this divorce counts as such unless both the following conditions are met: a) the person intends it and b) uses wording that is indicative of divorce. Consequently, your case does not constitute divorce because there was no intent and your statement was not an affirmative one, lacking firm determination to divorce.

(The above answer – shorter version has been verified by Dr. Main Khalid Al-Qudah, Member of the Fatwa Committee of Assembly of Muslim Jurists in America)

Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.

Wassalaam