Taking back divorced wife in her waiting period valid even without her consent
Fatwa No: 361093

Question

Assalaamu alaykum. My wife and I did a mutual divorce by signing a paper titled “DEED OF MUTUAL DIVORCE AND SETTLEMENT” in which it is written that both the husband and wife mutually decided to annul their marriage with effect from June 22, 2016. On July 5, 2016, my uncle told me that this is not a valid divorce as per the Islamic Shariah because the word divorce is not written in the paper and the word Talaaq (divorce) was not pronounced by me. So he advised me to say one Talaaq in front of my uncle and my brother. Accordingly, I said one Talaaq in front of them on July 5, 2016. One month later, I informed my wife through the phone that I had pronounced one Talaaq in front of my uncle and brother, and that if she wanted to come back to me, she could do so within the ‘Iddah (waiting period), meaning three months. She could not decide immediately, and she asked me to talk to her parents. Then the both of us discussed this issue over the telephone three or four times during the ‘Iddah. Thereafter, I finally told her that I withdrew the Talaaq and that she could come back to me anytime during my life time, and that my door will remain open for her. Now, in August 2017, she finally decided to come back to me if the Islamic Shariah permits this. Now my question is: What will be the valid way to take her back as my wife? May Allah reward you all.

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  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

What is apparent to us is that you did not take back your wife during her ‘Iddah (waiting period), as taking back the wife is not valid if it is conditioned on the wife's consent or any other conditions. The Kuwaiti Fiqh Encyclopedia of Fiqh reads, "It is not permissible to make taking back the wife [after divorce is issued] contingent on a condition according to the Hanafi, Shaafi‘i and Hanbali Schools."

Therefore, if you want to take her back and you did not divorce her three times previously, then you must conduct a new marriage contract with proposal and acceptance between you and her guardian in the presence of two witnesses, and a new dowry has to be named.

It should be noted that taking back a wife after a revocable divorce does not depend on her consent; rather, taking back a wife is valid even if she is not aware of it.

The waiting period of a divorced woman varies according to her situation. If she is a woman who menstruates, then her waiting period is three menstrual periods. If she is young or old and does not menstruate, then her waiting period is three months; and if she is pregnant, then her waiting period ends upon delivery of her baby.

Allah knows best.

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