Divorce by word or in writing
Fatwa No: 87034

  • Fatwa Date:18-2-2004 - Thul-Hijjah 27, 1424
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Question

Please tell me about the Talaq (Divorce). What Does Islam says if some one has give Talaq on written paper and did not say by words. Is it the same written, or by word? Please explain with reference of Ahadith.

Answer

Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions.

 

The most preponderant opinion of scholars is that divorce does not take place by the fact that a person who is able to speak writes the Talaq (divorce) unless he actually intended to divorce his wife when writing the divorce wording.

But if someone utters (as opposed to writes) the clear words of Talaq (divorce), such as ‘I divorced you’, ‘you are divorced’ then the divorce takes place whether the speaker intended divorce or not since the divorce becomes effective by only delivering the clear words of Talaq, it does not depend on the intention.

Al-Khatabi said: ‘Most of the scholars agree that if the explicit word of divorce is uttered by a mature and sane man, then he is accounted for it, and it does not benefit him to say, ‘I was joking, or I did not intend the divorce and so on’.

The evidence about the above is the saying of the Prophet (Sallallahu Alaihi wa Sallam): “There are 3 types of things, if they are serious, they are serious (meaning taking effect) and if they are not serious, they take effect as well: marriage, divorce and returning to one’s wife after divorce”. [Reported by Abu Dawud]

The evidence of the difference between uttering the word divorce and writing it is explained by many scholars.

Ibn Qudamah stated in al-Mughni: ‘Writing may mean many things, the purpose could be testing the pen (by writing this word), or writing the same word with good handwriting, or to grieve the wife without any intention for divorce, like when using expressions equivalent to divorce’.

Allah knows best.

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