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246965: Guidelines concerning implicit phrases of divorce


Which of these phrases is an implicit statement of divorce: “our Lord will spread out for you of His mercy” [al-Kahf 18:16] or “O Allah, compensate me with someone better than her and compensate her with someone better than me”?

Published Date: 2017-10-31

Praise be to Allah

Firstly:

The guideline with regard to implicit statements of divorce is that implicit statements include any phrase that may be understood as referring to divorce or something else, such as: “Go to your family,” or: “It is over between us,” and so on.

In Haashiyat al-Bujayrami ‘ala al-Khateeb (3/491), it says:

With regard to the words “any phrase that may be understood as referring to divorce or something else”, the guideline is that this applies to wording that may indicate an imminent separation, but it is not widely used as a shar‘i term or a customary term. End quote.

In al-Mawsoo‘ah al-Fiqhiyyah (29/26), it says:

The scholars are agreed that the implicit form of divorce means using words that are not usually used for that purpose but could be understood as meaning divorce or something else. But if the wording could never mean divorce in the first place, then this is not an implicit form of divorce; rather it is merely nonsense talk and does not imply anything. End quote.

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:

Any wording that could be understood to refer to separation comes under the heading of implicit statements of divorce.

End quote from ash-Sharh al-Mumti‘ (13/70).

Secondly:

Divorce does not count as such when implicit phrases are used, unless two conditions are fulfilled: that the person should have the intention of divorce, and that he should have used words that are indicative of divorce. If he utters words that are not indicative of divorce, either in shar‘i terms or according to customary usage, then even if he intended divorce by using those words, it does not count as such.

Ibn al-Qayyim (may Allah have mercy on him) said:

Divorce does not count as such unless the person intends it and uses wording that is indicative of divorce. If one of these two factors is missing, then no divorce takes place.

Words and phrases may be divided into those that are explicit and those that are implicit. Although dividing them in this manner is acceptable in principle, the issue may vary from one person, time or place to another. Therefore there is no fixed ruling on a particular phrase; a phrase may be regarded as explicit among some people and as implicit among others, or it may be regarded as explicit in one time or place, and as implicit in some other time or place.

We see this in reality. Hardly anyone uses the phrase “release” (cf. 33:28) with regard to divorce, either explicitly or implicitly, so it is not appropriate to suggest that if a man uses this word then his divorce of his wife is binding, whether he intended it or not.

End quote from Zaad al-Ma‘aad (5/291).

Based on that, the phrase our Lord will spread out for you of His mercy” [al-Kahf 18:16] is not indicative of divorce, either according to customary usage or in shar‘i terms. Based on that it is not an implicit form of divorce.

As for the phrase “O Allah, compensate me with someone better than her and compensate her with someone better than me”, it was narrated from Imam Ahmad (may Allah have mercy on him) that any supplication that refers to divorce could be used as a form of divorce. He was asked about a man who said to his wife: May Allah separate me and you in this world and the hereafter. He said: If he intended it as a supplication only, I hope that it does not mean anything.

Masaa’il Abi Dawood li’l-Imam Ahmad (p. 239); al-Insaaf, 8/478

Ibn Muflih commented on this in al-Furoo‘ (9/38):

He did not regard it as meaning anything when one’s intention is simply supplication, from which we may understand that it means something when there is an intention of divorce, or when it is used in general terms, on the basis that the word separate or separation is an explicit term, or because of the context in which he said it.

Then he mentioned a similar case and said:

The ruling concerning these three issues is the same. It seems that concerning each issue there are two views: will the context be taken into account and is it sufficient to indicate his intention, or should only the intention be taken into account? End quote.

What that means is: the supplication “May Allah separate me and you in this world and the hereafter” is an implicit form of divorce. There are two reports from Imam Ahmad about implicit forms of divorce and whether the intention is essential for the divorce to be valid, or is circumstantial evidence sufficient? In a number of fatwas on our website we have stated that the correct view is that implicit forms of divorce do not count as such unless they are accompanied by the intention of divorce, and circumstantial evidence is not sufficient. See question no. 120947.

Based on that, the supplication mentioned in the question, “O Allah, compensate me with someone better than her and compensate her with someone better than me”, is an implicit form of divorce; if the husband intended divorce thereby, then it counts as such, and if he did not intend that, then it does not count as such.

And Allah knows best.

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