Does Saying “We Need a Divorce” and Wife Agreeing Constitute a Divorce?

Answered by Mawlana Ilyas Patel

Question

Does saying “we need a divorce” and my wife agreeing constitute the first divorce? This occurred prior to my wife having had her period and then being done with it, which I understand is the appropriate time for me to declare the divorce.

We plan to go to a marriage counselor, and I hope we can arrive at a non-contested divorce in terms of handling things with the government and negotiating terms outside of court. I am trying to respect both of our rights. I also hope she gets counseling for some of her issues, but it’s most likely best to go our separate ways.

We are generally but not strictly Hanafi.

Thank you

Answer

In the Name of Allah, the Most Merciful and Compassionate

I pray you are in good faith and health. Thank you for your question.

The saying ‘we need a divorce’ and your wife agreeing does not constitute a divorce. The most appropriate time is to pronounce one divorce in a period of purity (tuhr).

Speech is Categorized in Two:

Speech is categorized into an informative statement (khabar) and a creative statement (insha’). An informative statement informs the listener of some news; hence, it can be agreed or disagreed with. As for a creative statement, it is not subject to any form of validation because it does not inform the listener of any news; rather, it is a command, request, prohibition, or something similar.

In the above case,  the husband is suggesting, which is a creative statement (insha’) such as “We need a divorce” and is not informing of any news of occurrence. Hence, it will not constitute a divorce yet.

Sunna Process of Divorce

The Most Preferred (Ahsan) divorce is to make one pronouncement of divorce to the wife in a purity period (tuhr) between menstruations, in which no sexual intercourse with the wife has taken place. She is left until her waiting period (‘idda) ends.

Divorce – a Solution to Remove Mutual Harm

Divorce in Islam can be a mercy for the couple. The reason is if the intended goal of marriage is not attained – mutual comfort – then divorce is a solution to the difficulty.
Allah Most High stated in the Quran, “But if they choose to separate, Allah will enrich both of them from His bounties. And Allah is Ever-Bountiful, All-Wise.” [Quran, 4:130]

Honorably Retain or Kindly Let Go

The Quran and His messenger mention that a marriage needs to work together; either one comes to a settled agreement or departs amicably without any bitter outcome.

Allah Most High said in the Quran, when guiding us about divorce that a wife should either be retained with honor or separated with grace.

“The divorce that can be returned from may be pronounced up to two times, then either honorably retaining her or kindly letting her go.” [Quran, 2: 229]

Quranic Guidance

The Quranic guidance is to seek help from righteous scholars, elders, and professional mediators, then to seek reconciliation of differences and give marriage another chance; if this step two fails, then the husband should issue one divorce and possibly have it documented in the presence of witnesses; if this too fails, then part amicably attending to a legal obligation, post-divorce, like custody, returning belongings, respecting one another with mutual understanding and sensitivity on both sides, especially when there are children involved.

I would like you to go through the valuable answers and links below. You will receive guidance and direction in sha Allah.

Related Answers

• Divorce Archives – SeekersGuidance
• What Is the Fiqh of Divorce? Is Pronouncing a Divorce in Front of Witnesses Necessary?
• Love, Marriage, and Relationships in Islam: All Your Questions Answered
• Etiquette of Marriage: A Comprehensive SeekersGuidance Reader

Wassalam,
[Mawlana] Ilyas Patel
Checked and Approved by Shaykh Faraz Rabbani

Mawlana Ilyas Patel is a traditionally-trained scholar who has studied in the UK, India, Pakistan, Syria, Jordan, and Turkey. He started his early education in the UK. He went on to complete the hifz of the Quran in India, then enrolled in an Islamic seminary in the UK, where he studied the secular and ‘Aalimiyya sciences. He then traveled to Karachi, Pakistan. He has been an Imam in Rep of Ireland for several years. He has taught hifz of the Quran, Tajwid, Fiqh, and many other Islamic sciences to children and adults onsite and online extensively in the UK and Ireland. He taught at a local Islamic seminary for 12 years in the UK, where he was a librarian and a teacher of Islamic sciences. He currently resides in the UK with his wife. His interest is a love of books and gardening.