Question # 190: What is the process for remarrying my husband my iddah period is nowhere over, he never said the talaq 3 times we just both agreed to 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: Divorces are of two types: explicit and implicit. Explicit divorce is the use of the word “talaaq” (divorce) and  phrases derived from it, while in case of implicit divorce, the word divorce is not uttered but expressed in some way that takes the place of speech. In such case, no divorce takes place unless there was intention of divorce or there are circumstantial evidence to that effect. The case under consideration seems to be of implicit divorce with intention. Therefore, presumably, if this is the first talaaq and ‘iddah has not ended as yet, then the husband can take his wife back by saying, “I am taking you back” or “I am keeping you” or he may do some action intending thereby to take her back. Then his taking her back is valid.

Long Answer: Divorces are of two types: explicit and implicit. Explicit divorce is the word of divorce (talaaq) and phrased derived from it, such as saying taaliq (you are divorced) or tallaqtuki (I divorce you). Implicit divorce means phrases such as: Go back to your family, or I don’t want you, or I have no need of you, or Allah has relieved you of me.

In the first case (explicit divorce), divorce takes place even if that was not the intention. With regard to the second case, which is implicit divorce, according to the majority of Hanafis, Shafi’is and Hanbalis, no divorce takes place unless there was the intention of divorce or circumstantial evidence to that effect, such as a state of anger or an argument, or the wife asked for divorce. In that case divorce takes place even if that was not the intention. Taking the circumstantial evidence into account in this case is the view of the Hanafis and Hanbalis. (al-Mawsoo’ah al-Fiqhiyyah) 

If a man divorces his wife and this is the first or second talaaq and she has not ended her ‘iddah (by giving birth if she is pregnant or by the passage of three menstrual cycles), then he can take his wife back by saying, “I am taking you back” or “I am keeping you.” Then his taking her back is valid. Or he may do some action intending thereby to take her back, such as having intercourse with the intention of taking her back.  The Sunnah is to have two witnesses to the fact that he has taken her back, so that two witnesses testify to that, because Allah (سبحانه و تعالى) says in the Qur’an:  “Then when they are about to attain their term appointed, either take them back in a good manner or part with them in a good manner. And take as witness two just persons from among you (Muslims).” (Soorah al-Talaaq 65:2) In this manner a man may take his wife back.

But if the ‘iddah has ended following a first or second talaaq, then there has to be a new marriage contract. In this case he has to propose marriage like any other man, to her guardian and to her. When she and her guardian agree and they agree upon a mahr, then the marriage contract is completed. That must be done in the presence of two just witnesses. But if the divorce is the final – i.e., third – divorce, then she becomes haraam for him until another man has married her, because Allah (سبحانه و تعالى) says in the Qur’an: “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” (Soorah al-Baqarah, 2:230) So it is not permissible for him to marry her unless she has been married to another man and the marriage has been consummated, then he leaves her either through death or divorce. This marriage must be a legitimate shar’iah marriage; if she marries him just to make it permissible for her to go back to her first husband, that is not permitted and she does not become permissible (to the first husband). (Fataawa al-Talaaq by Shaykh ‘Abd al-‘Azeez ibn Baaz)

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

The case under consideration seems to be of implicit divorce with intention. Therefore, presumably, if this is the first talaaq and ‘iddah has not ended as yet, then the husband can take his wife back by saying, “I am taking you back” or “I am keeping you.” Then his taking her back is valid. Or he may do some action intending thereby to take her back, such as having intercourse with the intention of taking her back.

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