Question # 376: My mother once said something bad about my wife which is not true and I didn’t believe my mother. But I angrily told my mother to prepare divorce papers and also said to my mother, “It is because of you that we got divorced.” But I didn’t tell my wife, “You are divorced” or anything like that. Did divorce really occur? And this happened around 6 years ago and we have been continuing our marital life thinking that no divorce took place. Do we still have to renew our marriage contract?
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).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: The default rule is that marriage contract is valid and in effect, unless otherwise clearly proven. The statement you made to your mother “it is because of you we are divorced” is a vague and unclear statement. You have to retrospect what did you mean – was it to execute divorce or just preparation to proceed with divorce? The former is divorce, while the latter is not.
(The above answer – shorter version has been provided by Dr. Main Khalid Al-Qudah, Member of the Fatwa Committee of Assembly of Muslim Jurists in America)
Long Answer: Just as divorce (talaaq) may be done verbally it may also be done in writing. If a person clearly writes that he is divorcing his wife and intends divorce thereby, then divorce does take place. That is because expressing it in writing is the same as expressing it verbally; the pen is one of the two tongues.
The condition according to the majority of fuqaha’ is that he should have the intention of divorce when writing, because he may intend by writing it that divorce should take place or he may intend something else, such as upsetting his wife. So, divorce does not take place in writing unless there is the intention to that effect. (al-Mabsoot; Minah al-Jaleel Sharh Mukhtasar Khaleel; Asna’l-Mataalib; al-Insaaf)
[Next,] if a person does not speak the word of divorce or write it with his own hand, but he is presented with a paper on which the word of divorce to his wife is written and is asked to sign it and does so, then reference should be made to his intention at the time of signing.
If he had decided to divorce and was intending to do so, then it counts as a divorce. If he wrote it but did not intend to divorce, then it does not count as a divorce. That is because signing is not a clear statement of divorce, and that which is not a clear statement could not be ruled to count as a divorce except with the intention of divorce. There are some scholars who think that signing on its own does not count as a divorce in any case.
Shaykh Muhammad ibn Ibraaheem (may Allah have mercy on him) said, answering a similar question: “There is no doubt that this signature is not regarded as one of the expressions of divorce at all, nor is it a clear statement of divorce, and it is not one of the metaphors for divorce. It does not come under the heading of writing, because the husband did not write that he was divorcing his wife so that it may be regarded as a divorce on the basis of writing. The most that can be said about this matter is that he wrote his name beneath the words written by someone else. If he did not say any of the words that were written on the paper mentioned, and he only wrote his name at the bottom, it does not seem to us that divorce has taken place as a result of his signing this piece of paper. (Fataawa wa Rasaa’il Muhammad ibn Ibraaheem Aal al-Shaykh)
(The Long Answer is based on various answers provided by Shaykh Muhammad Saalih al-Munajjid on the topic)
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.