What Is the Fiqh of Divorce? Is Pronouncing a Divorce in Front of Witnesses Necessary?
Hanafi Fiqh
Answered by Mawlana Ilyas Patel
Question
What are the proper rules for giving a divorce? Is it necessary to pronounce it in front of the wife for three consecutive months? Or can it be done by pronouncing it once before the witness? Is the actual rule written in hadith?
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.
Fiqh of Divorce
There are three types of divorces in the Hanafi school:
- Most Preferred (Ahsan)
- Preferred (Sunna) and
- Unlawful Innovation and Sinful ( Bid‘a)
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.
The Preferred (Sunna) divorce is to pronounce three divorces in three separate periods of purity (tuhr) in which no sexual intercourse with the wife has taken place.
The Unlawful Innovation and Sinful (Bid‘a) divorce consists of either making a pronouncement of divorce during the woman’s menstrual period (haid) or pronouncing two or three divorces at once or issuing a divorce in a purity period (tuhr) in which sexual intercourse with the wife took place.
Divorce – in Front of Wife or Witnesses or Both
It is not necessary to pronounce the divorce in front of the wife; it can be done in writing and in front of witnesses, which is highly recommended, to avoid disputes and falling into prolonged indifference. [Ibn ‘Abidin, Radd al-Muhtar]
Recommendation of Appointing Witnesses When Divorcing and When Taking One’s Wife Back (Raj‘a)
Imran Ibn Husayn (Allah be pleased with him) was asked regarding a person who divorced his wife and then was intimate with her. He did not appoint witnesses upon divorcing and neither upon revoking the divorce. Hence, he replied: “You divorced, and you revoked the divorce in a manner that does not follow the Sunna. Appoint witnesses when divorcing and revoking the divorce, and don’t repeat this (i.e., not appointing witnesses).”
“The recommendation of appointing witnesses can be deduced from the statement of Imran Ibn Husayn (Allah be pleased with him) “You divorced, and you revoked the divorce in a manner that is not by the Sunna” …And from amongst the evidence for the non-obligation of appointing witnesses is that there is consensus amongst the various scholars that it is not necessary to appoint witnesses when divorcing one’s wife, as related by Imam al-Awza‘i.” [Zafar Usmani, I‘la al-Sunan]
Divorce is a Serious Matter
Divorce is serious and should only be pronounced after advice and consulting with a reliable scholar. Many people say it and find themselves breaking up a family in a terrible situation simply because they didn’t understand, learn and follow the clear rules and procedures.
Related:
- What Kind of Words or Actions Qualify for Divorce?
- How Can a Woman Get an Islamic Divorce?
- Does a Divorce Need to Be Uttered in Front of Witnesses to Be Valid?
Why not begin your search for knowledge by signing up for a course: Quduri’s Mukhtasar: On Marriage and Divorce
I pray this helps with your question.
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.
