Divorce in Writing

Question

Praise be to Allah.

If the husband writes a message to his
wife saying “You are divorced,” whether that is via a mobile phone or on a
piece of paper or via e-mail, then it depends on his intention at the time
of writing. If he was determined to divorce her, then it counts as a
divorce, but if he wrote that without the intention of divorce, rather he
wanted to make his wife upset or some other reason, then it does not count
as a divorce.

Ibn Qudamah (may Allah have mercy on him)
said: Divorce does not take place if the word of divorce (talaq) is not
uttered, except in two cases, one of which is when a person is unable to
speak, such as a man who is mute; if he issues a divorce by means of
gestures, then his wife is divorced.

The second case is if the divorce is
written; if he intended it as such then his wife is divorced. This is the
view of al-Sha’bi, al-Nakha’i, al-Zuhri, al-Hakam, Abu Haneefah and Malik,
and it is the view that is narrated from al-Shafi’i.

If a man writes it without intending
divorce, then it does not count as such according to the majority of
scholars, because writing is open to interpretation, and he may have
intended just to test the pen, or improve his handwriting, or upset his
wife, without intending it (as a divorce). End quote from al-Mughni,
7/373

It says in Matalib Ooli al-Nuha (5/346):
If the one who wrote the words of divorce says: I only intended to improve
my handwriting thereby, or I only intended to upset my wife, that is to be
accepted, because he knows best what his intention was, and he intended
something that may be interpreted as other than divorce… and if he intended
to upset his wife by making her think that he was divorcing her when in fact
that was not the case, then he was not intending to divorce her. End quote.

Al- Shaykh Ibn Baz (may Allah have mercy
on him) was asked: A man was sitting with his sister and his wife and he
asked his sister to bring him a pen, then he wrote on a paper: “Talaq, talaq
(divorce, divorce)” without referring to anybody. His sister got angry and
took the pen, then she wrote three times, talaq, talaq, talaq (divorce,
divorce, divorce).” Then she threw the paper to his wife and said to her:
“Look, is what I have written correct?” But he did not intend to write these
words for his wife.

He replied: This divorce does not count as
such for the wife mentioned, if he did not intend thereby to divorce her.
Rather he was simply writing or he intended something other than divorce,
because the Prophet (peace and blessings of Allah be upon him) said:
“Actions are but by intentions…”

This view was held by very many of the
scholars and some of them narrated that it was the view of the majority,
because writing is like a metaphor, and a metaphor does not count as a
divorce unless it is intended as such, according to the more correct of the
two scholarly opinions, unless the writing is accompanied by evidence that
the intention was divorce, in which case it counts as such.

In the incident mentioned, there is
nothing to indicate that the intention was divorce, so the marriage remains
as it is, and actions are judged by intentions. End quote.

Al-Shaykh Muhammad ibn Ibraheem (may Allah
have mercy on him) said:

We have received your question, from which
we understand that a man wrote one divorce to his wife So and so the
daughter of So and so, and that he added his signature and name to the
writing, but he did not intend thereby to divorce his wife at all. Rather he
wrote the paper to scare his wife and threaten her so that she would stop
treating her husband badly. You are asking whether this man’s divorce of his
wife counts as such or not.

The answer: Praise be to Allah. If the
matter is as described, and by clearly writing words of divorce to his wife
he did not intend anything other than to threaten her and scare her so that
she would stop treating him badly, and he did not intend divorce at all,
then this does not count as a divorce. And Allah is the source of strength.
End quote.

Fatawa Muhammad ibn Ibraheem,
11/ question no. 3051

Al-Shaykh Muhammad ibn Ibraheem was also
asked about a man who wrote words of divorce to his wife, intending thereby
to upset his wife and threaten her. He replied:

It seems to us that this divorce does not
count as such, rather he intended thereby to upset his wife and threaten
her. The scholars have stated that if he intended by writing the words of
divorce to improve his handwriting or upset his family, then his intention
is to be accepted and the divorce does not count as such. It says in Sharh
Zad al-Mustaqni’ (vol. 3 p. 150): If a man clearly writes the word of
divorce to his wife in such a way that it appears clear, it counts as a
divorce even if he did not intend it as such, because it is clearly stated.
If he says, “I intended only to improve my handwriting or to upset my
family,” that is to be accepted. End quote.

And Allah is the source of strength. End
quote.

Fatawa Muhammad ibn Ibraheem, 11/question
no. 3050.