Documenting revoked divorce is not second divorce
Fatwa No: 342838

Question

I divorced my wife in anger at home, and we had sexual intercourse the same night. About a week later, we decided to do that divorce in court in order to avoid the punishments of divorcing at home, because in our country if a divorce takes place outside the court, there are several punishments. Therefore, we decided go to court and do the divorce in the court to avoid that. My intention is not to divorce my wife a second time. So my question is: does the divorce that we do at the court count as a second divorce?

Answer

All perfect praise be to Allah, The Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger.

If the situation is as you described, that it is just a documentation of the first divorce and not issuing a second divorce, then it does not count as a second divorce. The husband's intention is one of the pillars of the divorce, as has been underlined by the scholars. The Maaliki scholar Khaleel ibn Is-haaq  may  Allaah  have  mercy  upon  him wrote, "The pillars of divorce are: (1) a husband and wife, (2) (the husband's) intent, (3) intact marriage bond, (4) and the formula of divorce."

‘Ulaysh  may  Allaah  have  mercy  upon  him wrote in his commentary on Khaleel's book:

"The intent in this context means that the husband holds the intention to issue a divorce when uttering the explicit or clear implicit formula of divorce. The author of Al-Bahjah said, 'The intent in this context means intending the meaning of the expression of divorce. The point is to exclude the situations in which the divorce does not count, such as relating the incidents of other people issuing a divorce, the situation of a scholar giving a relevant example, and calling a woman named 'Taaliq' by her name (the Arabic word Taaliq means 'divorced')..."

Anger does not prevent the occurrence of the divorce unless the husband issues the divorce while he is angry to the point of being absolutely unaware of what he is saying and doing; please, refer to fatwas 121374 and 83467.

Having sexual intercourse with your wife after that divorce is a valid revocation of divorce according to some scholars, even if you had not intended to revoke the divorce then. The Hanbali book Kashshaaf Al-Qinaa‘ reads, "The revocation of the divorce without witnesses is done by having intercourse with the wife, even if the husband does not intend to revoke the divorce by it." Some scholars, on the other hand, stipulated the husband's intention to revoke the divorce, and others held that the revocation of the divorce is not valid by merely having intercourse even if the intention exists. For more benefit, please refer to fatwa 89845.

Finally, we warn of anger as it is the key to much evil. The husband should avoid the words of divorce as much as he can and be keen on solving problems through conversation.

Allah knows best.

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