Having witnesses is neither an obligation nor a condition for divorce
16-3-2010 | IslamWeb
Question:
Assalam o Alaikum Few days back, I had some arguments with the wife and I said to her, you are divorced. Later, after the fight I felt sorry for that. But the mistake was initiated from her side. I went to a Sheikh and told her the situation. He replied “bring two male Muslims who witnessed your divorce” which of course I did not had. He ruled out that Allah has commanded to bring two eye witness for divorce. If u do not have two, your divorce is not valid same like if you marry without two witness your marriage Contract is not valid. If you want really to divorce, go again and divorce ur wife in front of two eye witness when she is pure or pregnant. He further added that divorce without witness is against the word of Allah and Ayesha related from Prophet “One who acts on a way, Allah did not commanded on, his action will be rejected.” He also said that Ibn Hazam and many great Shia Fuqaha had the same ruling. He showed the book “Nizam Talaq” by great Scholar Sheikh Ahmad Shakir who had the similar fatwa. He ruled that this is not only a recommended thing to bring two witness but it is a condition of being divorce to be valid. I have already divorced two times to my wife and this was the third time if counted. However, based on his fatwa we are living together now as if this divorce was never valid. I also heard that few Ulama in Saudi Arabia have also same thoughts. Just wana know your knowledge on this issue. Did I do some thing haram to act on his fatwa? Many thanks for your time. Salam
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad 
is His slave and Messenger.
We have already issued Fatwa 89894 clarifying that having witnesses on divorce is something desirable and not an obligation, let alone it being a condition. This opinion, which we consider to be the preponderant one, is also the view of the majority of the scholars 
from among the companions 
and their followers [the generation that followed them (Taabi’een)], and this is the view we adopt at Islamweb.
The Fatwa that that man gave you is the view attributed to some scholars, like Ibn Hazm who was of the opinion that it is a condition, when giving divorce, to have witnesses and that divorce without witnesses in not effective [not valid]. Ahmad Shaakir and Jamal-ud-Deen Al-Qaasimi chose this opinion. However, as far as we are concerned, we cannot issue such a Fatwa because the scholars who issued such a Fatwa do not have reliable evidence to support their view. For more benefit, please refer to Fataawa 85415 and 82541.
Finally, it should be noted that both spouses should fulfill their obligations towards each other in order to maintain the stability of the marital life and the husband should be careful about uttering the word of divorce or using divorce as a means for solving problems between the spouses. For more benefit on the rights of spouses towards each other, please refer to Fatwa 85308.
Allaah Knows best.