Uncertainty about divorce

http://islamqa.org/hanafi/daruliftaa/7736

I have a friend who doesn’t remember exactly if he said the words “I divorce you”….because the thing is, he only recently found out about the ruling that if you pronounce those words, that it counts as one divorce, so he never really thought about it, he told me he’s 90% sure, but not 100% sure he said those words…so does that count as 1 divorce?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

In a previous article titled “Divorce in anger & subsequent doubts” compiled by this humble servant, the jurists (fuqaha) were quoted as stating that if one had a doubt in the number of divorces issued, then there are three situations. That article was concerning the situation where one was certain of issuing a divorce, but was uncertain as to how many divorces were issued.

However, if one has doubt in the issuing of divorce itself, meaning one was uncertain whether one issued a divorce or otherwise, then the ruling given by the Fuqaha is somewhat different.

The renowned juristic principle (qa’ida al-fiqhiyya) states:

“Certainty is not lifted by a doubt.” (See: Ibn Nujaym, al-Ashbah wa’l Nadha’ir, P: 60, Dar al-Fikr print)

The meaning of this principle is that if one was certain of doing an act, and uncertain of doing something that went against the initial action, then the first action will not be invalidated. For example: If one was certain of performing a ritual ablution (wudu) but was uncertain of breaking it, then one’s Wudu will not become invalid due to having a doubt of invalidating it, rather one’s Wudu will only be considered invalid if one was certain of carrying out something that invalidated one’s Wudu. Conversely, if one was certain of breaking one’s Wudu but was uncertain of performing a Wudu, then one would not be considered to have performed a Wudu, hence a new ablution will be necessary. (al-Ashbah, P: 62)

Based on this principle, if one was doubtful and uncertain of issuing a divorce to one’s wife, then such a doubt will not invalidate one’s marriage, as one was certain of marrying but doubtful in issuing the divorce, and (in light of the above-mentioned principle) the certainty of marrying will not be lifted by the doubt of issuing a divorce.

Imam Ibn Nujaym (Allah have mercy on him) explicitly uses this as an example to explain the above-mentioned principle. He states:

“Amongst the examples of this principle (i.e. certainty is not lifted by a doubt) is when one doubts whether one issued a divorce or otherwise. In such a case, divorce will not come into effect. (al-Ashbah Wa’l Nadha’ir, P: 67)

Similarly, the great Hanafi jurist, Imam al-Haskafi (Allah have mercy on him) states in his Durr al-Mukhtar:

“One knew that one took an oath but was uncertain of the oath being of divorce or something else; then the oath will be considered futile (lagw). Similar is the ruling when one is uncertain of whether one issued a divorce or otherwise (m: in that no divorce will take place).” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/283)

In conclusion, if one was doubtful and uncertain of issuing a divorce to one’s wife, then divorce will not come into effect, unless one was certain and sure of issuing the divorce.

However, it should be noted here that divorce is not only effected with the words “I divorce you” rather there are many other ways of issuing a divorce. Thus, if your friend does not remember saying these words but is certain of using some other phrase of divorce, then he should consult a reliable scholar and explain the particulars of his case to him. He should also remember that ignorance of the rules of divorce is no excuse for divorce not being effected.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK