Types of divorce:

Divorce has several types according to three considerations:

The first: In terms of the form of divorce, it is divided into divorce by obvious and clear words and divorce by metaphoric words. (1)

Divorce by clear words:

They are three words: Divorce, separation, and release and their derivations because divorce is proven by the Shari`ah and the language. Release and separation are proven by the Shari`ah because they were mentioned in the Qur'an with the meaning of separation between the spouses, so they are clear wordings such as divorce, Allah (Glory be to Him) says: "The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness." And He says: "And when you have divorced women and they are about to fulfill the term of their prescribed period, either take them back on reasonable basis or set them free on reasonable basis." (2)

Allah (Glory be to Him) says: "Then when they are about to attain their term appointed, either take them back in a good manner or part with them in a good manner." (3)

Allah (Glory be to Him) says: "But if they separate (by divorce), Allâh will provide abundance for everyone of them from His Bounty." (4)

Allah (Glory be to Him) says: "O Prophet (Muhammad peace be upon him)! Say to your wives: "If you desire the life of this world, and its glitter, then come! I will make a provision for you and set you free in a handsome manner (divorce)." (5)

These words can achieve divorce even without intention.

Case: If a husband says to his wife: You are divorced, or I divorce you, or you are a divorced woman or I release you, or you are released, or I shall leave you, or you are separated, then he says: I wanted to divorce another woman or it was a slip of my tongue, his excuse shall not be accepted because he claims something against the truth.

Case: If a husband says: You are divorced and then he says I wanted to release her from a condition or something of the like or he says: I release you then says: I wanted to release her hand or he says: I shall leave you and he says: I wanted to leave her body, his sayings shall not be accepted because he claims something against the clear meaning of the words. However, if his intention was so (perhaps he intended so and his wife knew the truthfulness of his intention), she may not leave him.

Case: If a husband says: You are divorced or released from a condition or I release your hand or I shall only leave your body, his wife shall not be divorced because he finished his words with a phrase to direct the meaning to something else.

Case: If someone asks him: Have you divorced your wife? or Is your wife divorced? or have you released her or separated from her? And the husband says: Yes. If he is truthful about that, his wife shall be divorced and if he said that falsely, divorce shall be effective also.

Divorce by metaphoric words: They are the words which indicate separation and look like the wordings of divorce such as: You are away, you are free, you are alone, and go away, go to your family, cast away, count your `Iddah, marry another, and something of the like. (6) If a husband says something of these words to his wife and intends to divorce her, divorce shall be effective, but if he does not have the intention, divorce shall not be effective. It is like abstaining from food and drink, but if he intends to fast, it will be fasting and if he does not have the intention it will not be fasting.

________________

(1) See: Al Bahr Ar-Ra'iq 3/263, Al Istidhkar 6/24, Al Majmu` Sharh Al Muhadhdhab 17/96, and Al Mughny 8/264.

(2) Surat Al Baqarah: 231.

(3) Surat At-Talaq: 2.

(4) Surat An-Nisa': 130.

(5) Surat Al Ahzab: 28.

(6) These words mean: You are free of marriage, you are free of my rights and obedience, you have no husband, I have no power over you, and You are alone without a husband. See: Al Majmou` Sharh Al Muhadhdhab 17/103.

Add comment