Marital status in doubt
8-9-2003 | IslamWeb
Question:
I was married in 1999 in the UK and I love my wife very much and I love my little son as well. She and I are 32 year old. I hit my wife a few times during our marriage because I was becoming angry quickly. This anger was controlling me since I came to the UK around 5 years ago, but I regret after I did so every time. I had many problems with her family. I was not praying at all at that time. However, I started praying and reading Qur'an three months ago, so I try to get rid of anger as our Prophet (Sallallahu Alaihi wa Sallam) told us and I feel I have been successful. She asked me to divorce her five months ago and she started legal divorce in English court. Since that time she has been living with her parents. I have not divorced her yet, but I told her two years ago 'you are divorced if you speak to your bother before he apologizes to me and gives me my money back'. I was extremely angry and out of control and I told her that just to put pressure on her brother to apologize to me and give me my money back and I did not mean divorce at all. He gave me the money at that time but he did not apologize. She spoke to her brother three months ago. Does she have the right to consider herself divorced in this situation as she told me that she spoke to her brother and that is enough to get the Islamic divorce and no need for my divorce? I told her two months ago even if you spoke to your brother you still my wife. So what is the situation here?
Answer:
Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions. The expression of a person while divorcing his wife, 'you are divorced if you talk to your brother' is regarded as a conditional divorce. If she talks to her brother the divorce becomes effective, according to the majority of Muslim scholars. Some other scholars do not agree with the above ruling, but they believe that a conditional divorce is of two kinds: 1) When the person stipulates a condition, he intends issuing the divorce if the condition takes place (in this case talking to her brother is a condition). If he intends issuing a Talaq when the condition is met then it is considered a valid Talaq. 2) He does not intend to divorce her by stipulating the condition; rather he intends to threaten her, to stop her from doing such an act. In this case, the divorce is not valid but it is as taking an oath. So, if his oath is not fulfilled he has to pay the expiation of breaking an oath; otherwise, he does not have to do anything. According to the second opinion your Talaq is not effective because you had not intended Talaq rather you had intended only to put pressure on her brother, as you mentioned in your question. According to the first opinion, i.e. if the divorce is valid you may take her back to the conjugal life if she is still in her waiting period without renewing the marriage contract and without the permission of her guardian. However, it is recommended to call witnesses when taking her back. As for your situation that you are "very angry" to know the rulings of divorce given in anger, please read the Fatwa:81843 We advise our brother to fear Allah, keep on performing the obligations of Shariah and behave in good manners with people, especially with your wife. Allah knows best.