I have been contemplating divorce almost since the day I got married, but I have put it off hoping Allah will change everything for the better. Since the subject has been on my mind almost constantly, I have spoken to others (family members and friends) about it to release my stress and tension. During the course of such conversation I have said some things which may constitute divorce such as “I don’t want to be with her” and “I cant stand being with her” (what I meant was I am not happy when with her), but recently I kind of decided that I will divorce my wife before I leave for Hajj (meaning I will tell her over the phone a day before I leave), what I would like to know is whether me giving her a divorce before I go to Hajj is binding or whether it is already done merely by the fact I made up my mind that I will do it before I leave for Hajj. Please help, your brother in need of advice? Also what is the significance of saying “I am going (meaning I am going to go ahead with it) to divorce her”, but not meaning I have divorced her.
1) Thinking about divorce or contemplating issuing a divorce to one’s wife does not Islamically constitute a divorce, as long as one does not actually issue a divorce verbally or in writing.
Sayyiduna Abu Hurayra (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Verily Allah overlooks my Umma for the misgivings that occur in their hearts until they say it verbally or act upon it.” (Sahih al-Bukhari & Sahih Muslim)
Although the above Hadith is in relation to having evil and sinful thoughts, it can be generalized, in that as long as one has a specific intention in the heart, it will be of no consequence unless one says it verbally or follows it up with action.
Imam al-Haskafi (Allah have mercy on him) states in his renowned Durr al-Mukhtar:
“The main integral (rukn) of divorce is the specific statement (lafdh makhsus).”
Imam Ibn Abidin explains the above by saying:
“(al-Haskafi’s statement: “the main integral of divorce is the specific statement”) that is, a statement which has the meaning of divorce whether in clear terms or in allusive terms…The expression “statement” also includes clear writing and the gesture (isharah) of a dumb person…” (Radd al-Muhtar ala al-Dur, 3/230)
Therefore, in order for a divorce to count, one needs to verbally pronounce the words of divorce or write it. If the person is dumb, then his clearly understood gesture would be sufficient.
2) Words that effect divorce are of two types: Clear words (sarih) and allusive words (kinaya). Sarih (clear) means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc. Kinaya (allusive) means using words that are not exclusively prescribed for issuing a divorce, although they allude and hint to divorce.
Clear and plain words effect divorce whether one intends divorce by them or otherwise, while allusive words do not effect divorce unless one intends divorce by them or it is determined by the circumstance one is in. (See: the major classical books of Fiqh).
3) Divorce does not count in the case of one using words that represent the future, hence, if one said: “I will divorce you” or “I am going to divorce you” and/or other similar statements, divorce will not be effected. Divorce only comes into effect when using words of divorce in the past and present tense forms.
It is stated in al-Fatawa al-Hindiyya:
“If an individual said in Arabic “I will divorce you” it will not be considered a divorce unless its usage becomes widespread for the present tense, in which case divorce will count.” (al-Fatawa al-Hindiyya, 1/384)
In light of the above-mentioned three points, it becomes clear that your marriage is still intact and no divorce has taken place. You state that you have been contemplating divorcing your wife since you were married, thus, in light of point number one, merely contemplating divorce is of no consequence. Similarly, you state that you decided to divorce your wife before going for Hajj; hence, this also does not invalidate your marriage, as it is mere contemplation. Even if you mentioned this to your wife or someone else, divorce will not occur, as promising to divorce in the future is not considered a divorce as mentioned in point number three.
As far as the statements “I don’t want to be with her” and “I can’t stand being with her” are concerned, they are not clear (sarih) words of divorce, rather they allude to it. The first statement made by you is both an allusive statement and also attributed to the future; hence, divorce is not effected even if you did intend divorce. The second statement may be considered an allusive statement of divorce in the present tense form, but as mentioned in point number two, allusive words require an intention of divorce, and you state that you merely intended you were not happy with her; hence, divorce is not effected on account of it.
In conclusion, according to the details given by you in your question, your marriage is still intact and divorce has not taken place. You need to be extra vigilant in the future, as not to regret something you don’t want to take place.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK