Does This Count as a Valid Divorce?
Shafi'i Fiqh
Answered by Shaykh Irshaad Sedick
Question
My husband became upset with me and left the house until I left. I told my co-wife to ask our husband to grant me a khula‘ while she was on the phone with him. He replied yes. I had not received my dowry before this.
A month later, we did another nikah. Two and a half years later, my husband became upset with me and left again. He came back when my nights came around, and I didn’t think anything of it. A year later, he claims to think that he divorced me via text when he had left. I never received a message about divorce.
I left last year because of emotions and moving in haste, so I went to an imam who had ill intentions towards my husband and asked for a khula‘ because my husband wouldn’t grant me a khula‘.
The imam called him and told him my request, so my husband said no, he wasn’t divorcing me. The imam told him that his womanizing days were over, and the imam kept bringing up my husband’s past, so he became upset and told the imam that he had divorced me.
Now it’s a year later, and I realize how much my daughter is affected, and I wish to go back because if I remarry, my ex-husband will have the rights to my child, and I now realize I made a mistake.
My now ex-husband is an Imam and a great teacher, very active in the community with the youth, and a great husband, and I now realize how ungrateful I was. I want to go back.
My question is: Does the khula‘ count as a divorce, and is the second and third divorce valid?
Answer
In the Name of Allah, the Most Merciful and Compassionate. May Allah guide us to that which pleases Him, forgive us for our shortcomings, and alleviate our difficulties, Amin.
We are sorry to hear about your ordeal and empathize with you deeply. You have been through so much with this situation, and perhaps it would be best to find contentment with Allah and possibly a different marriage, and Allah knows best.
Based on your description, your ex-husband issued three independent and valid divorces. Some details about your situation in the Shafi’i School may allow you to return to your ex-husband.
Khula’
According to the dominant view of the Shafi’i School, a divorce by way of khula‘ counts as a finalized divorce, but the couple may remarry with a new contract. If they remarry, only two divorce pronouncements remain. [Shirbini, Mughni al-Muhtaj]
Another view in the Shafi’i School exists that many scholars preferred. According to the alternate view, khula‘ is considered ‘a nullification’ (faskh) of the marriage and does not count as one of the three divorce (talaq) pronouncements. [Shirbini, Mughni Al-Muhtaj; Dimyati, I’ana al-Talibin]
Based on the above, the khula’ did not count as one of the three divorce (talaq) pronouncements, and Allah knows best.
Talaq via Text
If your husband says that he wrote a message (text or otherwise), and he intended divorce (talaq) thereby, it is valid and does count as one of the three divorce (talaq) pronouncements. [Misri, ‘Umda al-Salik]
Divorce Under Provocation or in Anger
Based on your description of the telephone conversation between your ex-husband and the imam, the divorce (talaq) is valid and, therefore, counts as one of the three divorce pronouncements. Neither the imam’s alleged ill-intentions nor his provocations have any bearing on your ex-husband’s pronouncement, and Allah knows best.
According to the information provided and the opinions expounded upon above, it is lawful for you to return to your ex-husband if he proposes, as two divorce pronouncements occurred, and Allah knows best.
We would advise you to consult your close relatives, especially older males, pious servants of Allah, and professionals who could advise you about the possible benefits and harms of returning to your ex-husband. After that, you should earnestly pray to Allah in istikhara to guide you to the best decision for all. If you decide to return to this matrimony, however, there is only one divorce pronouncement remaining.
I pray this is of benefit.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani
Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar, Shaykh Taha Karaan.
Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.
He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.
Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and pursuing his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.
