What if the Husband Pronounces One Divorce after Another

What if the Husband Pronounces One Divorce after Another

Question:

A man said to his wife ‘I am separating you from me’ and then said the word ‘divorce’ to her. His exact words were: ‘I am separating you from me, Talaq’ What is the Islamic ruling? Has divorce occurred or not. If it has then how many and whether is it revocable or irrevocable? Please clarify

Answer:

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

Primarily, there are two situations here and depending on which situation we have, the ruling of divorce will differ. The husband’s statement can be perceived in two ways. It can be considered as one sentence, in that he did not intend two separate pronouncements; rather, he was merely emphasizing (ta’keed) the divorce. The second situation is where the husband intended a second pronouncement of divorce with the word ‘Talaq’ and he was not merely confirming the divorce. In other words, he was not merely emphasizing the divorce, but was actually thinking that this is a second statement of divorce that he is directing to his wife.

1) In the first situation, where the husband did not intend two separate pronouncements, one irrevocable divorce (talaq ba’in) has come into effect. The husband’s statement ‘I am separating you from me’ is an allusive (kinaya) statement that normally results in an irrevocable divorce if the husband has an intention to divorce. Here, the husband did have the intention to divorce his wife, as he clearly said ‘Talaq’ directly after it. Even if he did not intend divorce with this (first) statement, the second statement ‘Talaq’ is a clear statement of divorce which normally results in a revocable divorce with or without an intention. However, if this clear statement of divorce is joined with other words of emphasis, then it will result in an irrevocable divorce. Thus the statement ‘Talaq’ has been emphasised with the statement ‘I am separating you from me’ hence it will result in one irrevocable divorce and not a revocable one. (See: Radd al-Muhtar, 3/250)

As such, one irrevocable divorce has been effected and the wife must observe the waiting period (idda) immediately. If the couple wish to reconcile, they may do so by having a new Nikah contracted within the waiting period or after it. The husband, however, must remember that in future he will only possess two more divorces. If he was to ever divorce his wife two more times, the marriage will be completely over.

2) The second situation is where the husband meant to pronounce two separate statements of divorce. In this case, two irrevocable (ba’in) divorces will be effected, with the husband only possessing one further divorce in the future (if the couple were to reconcile). Here, the statement ‘I am separating you from me’ is an allusive statement of divorce which results in an irrevocable divorce. Thereafter, the husband pronounced a clear word of divorce, which normally results in a revocable divorce.

The renowned Hanafi jurist, Imam Haskafi (Allah have mercy on him) mentions four possible scenarios with regards to following up a divorce with another divorce. He states:

‘A clear (sarih) divorce follows a clear (sarih) divorce and an irrevocable (ba’in) divorce, with the condition of (this being in) the waiting period. And an irrevocable divorce (ba’in) follows a clear (sarih) divorce……. And an irrevocable (ba’in) divorce cannot follow another irrevocable (ba’in) divorce.’ (See: Radd al-Muhtar ala al-Dur al-Mukhtar, 3/306-308)

The meaning of the above text is that there are four scenarios with regards to following up a divorce with another divorce:

a) sarih + sarih
b) ba’in + sarih
c) sarih + ba’in
d) ba’in + ba’in

(Sarih means divorce in clear terms which normally results in a revocable/raj’i divorce, and ba’in means an irrevocable divorce).

a) Following up a clear (sarih) divorce with another clear (sarih) divorce ( as-sarih yalhaq as-sarih):

A clear divorce is where the husband pronounces divorce in clear terms. This type of divorce normally results in a revocable (raj’i) divorce and is effected even without the intention of divorce. As such, if a husband said to his wife: ‘I divorce you, I divorce you’ then two revocable divorces will come into effect. The husband may take his wife back (raj’a) provided he does so within the waiting period (idda) of the woman. If the waiting period is over, they may still get back together but now a new marriage contract will be needed.

The meaning of ‘with the condition of (this being in) the waiting period’ in the above text is that in order for the second divorce to be valid, it must be pronounced within the waiting period. As such, if a man said to his wife: ‘I divorce you’ and then when her waiting period was over, he again made the same statement, then obviously it will be of no consequence, as she is no longer his wife. It is as though he is pronouncing divorce to a complete stranger.

b) Following up an irrevocable (ba’in) divorce with a clear (sarih) divorce (as-sarih yalhaq al-ba’in):

Irrevocable divorce (talaq ba’in) is effected when the husband clearly stipulates that he is issuing his wife an irrevocable divorce, or when he divorces his wife using allusive words with an intention to divorce her. As such, if a husband divorced his wife irrevocably and then followed it up with a clear divorce, for example he said,’I am leaving you, I divorce you’ then in this case both divorces will come into effect.

It should be noted here that the first divorce is irrevocable, hence the marriage is considered to be somewhat over (unlike a revocable divorce). Despite this, when the second divorce is pronounced in clear terms, it will come into effect even if it was pronounced after an irrevocable divorce.

Imam Ibn Abidin (Allah have mercy on him) mentions another point of interest here. He states that if a divorce in clear terms (which normally results in a revocable divorce) is pronounced after an irrevocable divorce, the second clear divorce will also be considered irrevocable. The reason being is that the second divorce in clear terms has been preceded by an irrevocable divorce and that first irrevocable divorce will prevent the second clear divorce from being revocable. As such, two divorces will come into effect and both will be considered irrevocable. If the couple wish to reconcile, a new marriage contract will be necessary within or after the waiting period. (Radd al-Muhtar, 3/306)

c) Following up a clear (sarih) divorce with an irrevocable (ba’in) divorce (al-ba’in yalhaq as-sarih):

The third scenario is where one first pronounces clear (revocable) divorce and then the irrevocable divorce. For example, the husband says, ‘I divorce you, I am leaving you’. In this case, a revocable divorce took effect with the first pronouncement, and thereafter an irrevocable divorce. Hence, now two divorces have come into effect, with the second divorce being an irrevocable one, thus making a new marriage contract necessary if the couple desired to remain together.

d) Following up an irrevocable (ba’in) divorce with another irrevocable (ba’in) divorce (al-ba’in la yalhaq al-ba’in):

For example the husband says to his wife: ‘I am leaving you, I am leaving you’ intending divorce with both statements (although the ruling may be different if he says, ‘I divorce you irrevocably, I divorce you irrevocably’. Please check with a reliable scholar). In this case, only the first divorce will count and the second will be considered futile. Regardless of how many irrevocable divorces a man pronounces, only the first divorce is effected. The reason being is that the first divorce is irrevocable; hence, the marriage bond between the husband and wife has ended. As such, the second irrevocable divorce will not be able to attach itself on a relationship that has already come to an end. (Culled from Ibn Abidin’s Radd al-Muhtar, 3/306-309)

In light of this explanation on the four possible scenarios, two irrevocable divorces have come into effect. You state that the husband said: ‘I am separating you from me, Talaq’ which is from the second scenario, in that he followed up an irrevocable (ba’in) divorce with a clear (sarih) divorce. And as mentioned, in such cases two divorces come into effect and both of them are considered irrevocable. Therefore, if the couple wish to reconcile, a new marriage will have to be contracted and the husband will only have one more divorce in his possession for the future.

To sum up, primarily, there are two situations here. If the husband intended his statement ‘I am separating you from me, Talaq’ to be one statement of divorce, then one irrevocable (ba’in) divorce will come into effect. In this case, a new Nikah will have to be contracted if the couple wish to reconcile. However, if the husband intended two separate statements of divorce, then two irrevocable divorces will be effected, with only one more divorce remaining in the future, if the couple were to remarry.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Question #: 5760
Published: 07/05/2010
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