Islam Question and Answer - Divorce in writing

Divorce in writing

If a husband writes a text message to his wife on the cell phone, saying “You are divorced” then he says that he did not mean it as a divorce, does that count as a divorce?.

 

Praise be to Allaah.

Firstly: 

The fuqaha’ are
unanimously agreed that divorce may take place in writing, because divorce
may be understood from writing letters, so it is akin to speaking, and
because writing may take the place of words uttered by the writer. The
evidence for that is the fact that the Prophet (peace and blessings of
Allaah be upon him) was commanded to convey the message, so he conveyed it
sometimes by speaking and sometimes in writing. So the writing by means of
which divorce takes place is clear writing, such as writing on a paper, a
wall or on the ground, in a manner that can be understood and read. As for
writing that is not clear, such as writing in the air or in water or
anything that cannot be understood and read, this does not count as a
divorce, because this writing is like muttering that cannot be heard. End
quote. 

Al-Mawsoo’ah al-Fiqhiyyah,
12/217 

Secondly: 

If the husband writes a
message to his wife saying “You are divorced,” whether that is via a mobile
phone or on a piece of paper or via e-mail, then it depends on his intention
at the time of writing. If he was determined to divorce her, then it counts
as a divorce, but if he wrote that without the intention of divorce, rather
he wanted to make his wife upset or some other reason, then it does not
count as a divorce. 

Ibn Qudaamah (may Allaah have mercy on him) said: Divorce
does not take place if the word of divorce (talaaq) is not uttered, except
in two cases, one of which is when a person is unable to speak, such as a
man who is mute; if he issues a divorce by means of gestures, then his wife
is divorced. 

The second case is if the divorce is written; if he intended
it as such then his wife is divorced. This is the view of al-Sha’bi,
al-Nakha’i, al-Zuhri, al-Hakam, Abu Haneefah and Maalik, and it is the view
that is narrated from al-Shaafa’i. 

If a man writes it without intending divorce, then it does
not count as such according to the majority of scholars, because writing is
open to interpretation, and he may have intended just to test the pen, or
improve his handwriting, or upset his wife, without intending it (as a
divorce). End quote from al-Mughni, 7/373 

It says in Mataalib Ooli al-Nuha (5/346): If the one who
wrote the words of divorce says: I only intended to improve my handwriting
thereby, or I only intended to upset my wife, that is to be accepted,
because he knows best what his intention was, and he intended something that
may be interpreted as other than divorce… and if he intended to upset his
wife by making her think that he was divorcing her when in fact that was not
the case, then he was not intending to divorce her. End quote. 

Shaykh Ibn Baaz (may Allaah have mercy on him) was asked: a
man was sitting with his sister and his wife and he asked his sister to
bring him a pen, then he wrote on a paper: “Talaaq, talaaq (divorce,
divorce)” without referring to anybody. His sister got angry and took the
pen, then she wrote three times, Talaaq, talaaq, talaaq (divorce, divorce,
divorce).” Then she threw the paper to his wife and said to her: “Look, is
what I have written correct?” But he did not intend to write these words for
his wife. 

He replied: This divorce does not count as such for the wife
mentioned, if he did not intend thereby to divorce her. Rather he was simply
writing or he intended something other than divorce, because the Prophet
(peace and blessings of Allaah be upon him) said: “Actions are but by
intentions…” 

This view was held by very many of the scholars and some of
them narrated that it was the view of the majority, because writing is like
a metaphor, and a metaphor does not count as a divorce unless it is intended
as such, according to the more correct of the two scholarly opinions, unless
the writing is accompanied by evidence that the intention was divorce, in
which case it counts as such. 

In the incident mentioned, there is nothing to indicate that
the intention was divorce, so the marriage remains as it is, and actions are
judged by intentions. End quote. 

Shaykh Muhammad ibn Ibraaheem (may Allaah have mercy on him)
said: 

We have received your question, from which we understand that
a man wrote one divorce to his wife So and so the daughter of So and so, and
that he added his signature and name to the writing, but he did not intend
thereby to divorce his wife at all. Rather he wrote the paper to scare his
wife and threaten her so that she would stop treating her husband badly. You
are asking whether this man’s divorce of his wife counts as such or not.

The answer: Praise be to Allaah. If the matter is as
described, and by clearly writing words of divorce to his wife he did not
intend anything other than to threaten her and scare her so that she would
stop treating him badly, and he did not intend divorce at all, then this
does not count as a divorce. And Allaah is the Source of strength. End
quote. 

Fataawa Muhammad ibn Ibraaheem,
11/ question no. 3051 

Shaykh Muhammad ibn
Ibraaheem was also asked about a man who wrote words of divorce to his wife,
intending thereby to upset his wife and threaten her. He replied: 

It seems to us that this divorce does not count as such,
rather he intended thereby to upset his wife and threaten her. The scholars
have stated that if he intended by writing the words of divorce to improve
his handwriting or upset his family, then his intention is to be accepted
and the divorce does not count as such. It says in Sharh Zaad
al-Mustaqni’ (vol. 3 p. 150): If a man clearly writes the word of
divorce to his wife in such a way that it appears clear, it counts as a
divorce even if he did not intend it as such, because it is clearly stated.
If he says, “I intended only to improve my handwriting or to upset my
family,” that is to be accepted. End quote. 

And Allaah is the Source of strength. End quote. 

Fataawa Muhammad ibn Ibraaheem, 11/question no. 3050.

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