Fatwa ID: 04755
Answered by: Alimah Mahdiyah Siddique
Question
Assalaamu Alaikum,
Would you please clarify my marital position based on these facts;
In 2007 in a fit of extreme anger my husband said “I’m giving you your Talaq now” I understood it to be the end of my marriage and did not live as husband and wife but remained in the same house, the confusion was that I cannot remember his words clearly and whether he said ALL TALAQS or TALAQ, however, he said he does not remember issuing any words to that effect and Talaq pronounced in anger and without intention is invalid, therefore about 4/5 months later we resumed a normal relationship.
In 2011 He went to Makkah for Haj and during an argument, he sent me a text message issuing one Talaq, he returned from Haj and we resumed a normal relationship.
The marriage was not working so I filed for a civil divorce; we were communicating and mutually agreed to continue with a civil divorce with the intention that I would have no claim to his wealth. Then after a disagreement in 2014, he sent me an email saying he is issuing a 2nd Talaq to me.
The civil divorce was issued but not signed by him due to him being out of the country, and was signed by the judge.
He remarried in 2015.
He has approached me and wants reconciliation due to his second marriage failure, we have 4 children together, I would like to reconcile with him but am not sure because of the validation of being in his Nikah.
Jazak Allah for reading my email, I’m hoping for a speedy reply.
In the name of Allah, the Most Gracious, the Most Merciful
Answer
In response to your question;
The case will be split into three sections,
Firstly in regards to the incident, you have mentioned having taken place in 2007, if the anger was such that it caused him to become unaware of what he was saying and any consequences thereof; then even if uttered, the divorce will not be valid. On the other hand, if the level of anger was such that he was fully aware of what he was saying; it did not affect his reasoning — the divorce will be considered as to have taken place. (Radd al-Muhtar, 3/244)
Furthermore, intention plays an important role in regards to whether or not a divorce will be considered to have taken place if the intention is not present likewise the divorce will not be present (considered invalid). (Sunan Tirmidhi, Hadith no. 1191, p1769, Al-Kutub Al-Sitta: Darussalam)
In the conclusion of this section, on the basis of your husband’s statement of not remembering uttering the divorce words, being in a state of extreme anger, and not having an intention; the divorce will not have taken place.
Secondly, in the incident of 2014 (when divorce was given via email), this being the second divorce, would stand revocable due to the words of the Exalted, “Divorced women remain in waiting for three menstrual periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in that (period) if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them (in responsibility and authority). And Allah is Exalted in Might and Wise.” (Surah Al-Baqarah: Verse 228)
The husband has the right as stated in the aforementioned Quranic verse to take back his wife during the ‘iddah period of the first or second divorce, if the ‘iddah period has passed and he wishes to take her back, there will need to be a new marriage contract and dowry, moreover the consent of the female will be needed again and she will only be returned if she wishes to.
Thus, in the conclusion of this section — there is still one divorce remaining and the option to reconcile is open, in accordance with fulfilling the criteria mentioned above.
L
astly, a judge signing divorce papers on behalf of someone is not considered to be a valid divorce in Islamic Law, the husband himself has to sign the documents for it to become effective, however, if the judge or another person has been appointed as a representative by the husband himself to sign the divorce documents (on behalf of him), then that will constitute a valid divorce. (Mukhtasar al-Qudoori, p508, Maktaba Bushra, Karachi Pakistan)
Only Allah Knows Best
Written by Alimah Mahdiyah Siddique
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
