Is Having Witnesses Necessary in Order for a Divorce to be Considered Valid?

Is Having Witnesses Necessary in Order for a Divorce to be Considered Valid?

Question:

Twice my husband has given me the divorce during different time periods. I got a Fatwa that it will be considered two divorces and next time if my husband says the word “divorce” then there will be no way to patch up again because it will be considered as the 3rd and final divorce.
Now again, he has given me the third divorce, but I have no witnesses.

My question is: Is having witnesses necessary? Because now he denies giving divorce and refuses to go to Shariah council, but he admits in front of me that he used the divorce word several times.

Kindly, if somebody can help me and tell me what should I do next, that according to Islam where I am standing and what is my position in the same house living with him?

Answer:

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

Through my limited experience, I have found many Muslim brothers and sisters wrongly believing that in order for a divorce to be valid and effected in Shariah, one needs to have witnesses present at the time of divorce. This understanding, however, is incorrect, as divorce comes into effect with or without the presence of witnesses. Almost all of the Fuqaha, both past and present, are of the opinion that having witnesses is not a prerequisite in order for a divorce to come into effect. Rather, divorce comes into effect regardless of whether there are witnesses present or otherwise.

Imam Zafar Ahmad al-Uthmani (Allah have mercy on him) quotes the following narration in his colossal work, I’la al-Sunan, in the chapter concerning the 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, and 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 is not in accordance with the Sunnah. Appoint witnesses when divorcing and when revoking the divorce, and don’t repeat this (i.e. not appointing witnesses).” This Hadith has been recorded by Imam Abu Dawud and Imam ibn Majah (in their respective Sunans) without the statement: “and don’t repeat this” al-Bayhaqi and Tabrani have also recorded this narration with the addition of him saying: “Seek forgiveness from Allah”. Hafidh Ibn Hajr (Allah have mercy on him) said in his al-Bulugh al-Maram that the chain of transmission for this Hadith is sound (sahih).

Imam Zafar Ahmad al-Uthmani after recording the above Hadith then states:

“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 in accordance with the Sunnah” …And from amongst the evidences 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.” (I’la al-Sunan, 11/204)

Thus, as the companion Sayyiduna Imran ibn Husayn (Allah be pleased with him) judged, a divorce counts even without appointing any witnesses. However, the recommended and correct method of issuing a divorce is to appoint witnesses, so that it helps in preventing any possible future disputes. Also, in order to prove divorce in an Islamic court, one will need to provide witnesses in front of the judge, as mentioned in the books of Fiqh.

Based on the above, if your husband issued the third divorce and you are certain of this, then the third divorce has taken place, hence you no longer can have a martial relationship with him. This ruling would stand even if you don’t have any witnesses to prove this.

Therefore, If you did actually hear your husband divorcing you the third time, it will not be permissible for you to treat him as your husband. It will be necessary for you to consider the marriage to be over, thus not let him have a husband-wife relationship with you. You should warn him of the severe punishment promised by Allah Almighty on adultery and get other people involved to explain to him. If he still denies divorcing you, you may pay him a sum to release you. Alternatively, you may take your case to an Islamic council and file for divorce. The Fuqaha mention that a woman is like a judge (al-mar’atu kal qadhi) meaning that she will be considered a judge with regards to her own situation. (Radd al-Muhtar, 2/432) Hence, if you are certain of him divorcing you for the third time, you must do whatever you can in order to come out of this marriage.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Question #: 6101
Published: 12/05/2005