I have an urgent question. My brother became involved with another woman and wanted to marry her. This other woman placed a condition that he must divorce his first wife in order to marry her. My brother went to the Islamic court in our country and got himself a divorce certificate and told me to sign the certificate as a witness. When I declined to sign, he said he merely got this certificate to show the woman he intends to marry as a second wife, but does not really have an intention to divorce his wife. I tried my best to explain to him that this is not a good thing to do, and after much persuasion I managed to convince him. Now he is still with his wife and has forgotten the idea of marrying this other woman. The divorce certificate is with me and has not been signed by any witnesses. He himself did sign on the certificate wherein it states that he has divorced his wife three times.
My question is, will this count as a valid divorce in Islam, despite my brother not having an intention to divorce his wife. He merely did this to show the other woman that he has divorced his wife and did not have an intention to divorce his wife.
In the name of Allah, Most Compassionate, Most Merciful,
1) According to Shariah, speech and verbal utterance is not a necessary requirement for the validity of a divorce (talaq); rather, a divorce is effected by means of the written word also.
Imam al-Kasani (Allah have mercy on him) states:
“…..Issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance.” (Bada’i al-Sana’i, 3/100)
Moreover, if the husband instructs a third person to write the decree of divorce for him and then signs this written document, divorce will be effected.
Imam Ibn Abidin (Allah have mercy on him) states:
“If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing.” (Radd al-Muhtar, 3/246-247)
Therefore, if a husband instructed a third party to write out a declaration or certificate of divorce from him to his wife, and he then signed this declaration, it will be considered a valid divorce. The Hanafi jurists (fuqaha) consider this a form of verbal divorce, in that the husband instructed the third party to write out the divorce.
2) Almost all of the Fuqaha, both past and present, are of the opinion that having witnesses is not a pre-requisite for a divorce to be valid. Divorce comes into effect regardless of whether witnesses are present or otherwise, though the recommended and correct method of issuing a divorce is to appoint witnesses, so that it prevents disputes in the future. This was explained in an earlier answer.
3) Divorce in clear words will be effected regardless of whether one issued the divorce in seriousness or jest, and regardless of whether one intended the outcome or otherwise.
Sayyiduna Abu Hurayra (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “There are three things which, whether taken seriously or in jest, are treated as serious (and the effect of them occur in all circumstances): Marriage, divorce and taking one’s wife back (raj’a).” (Sunan Abi Dawud, no. 2188, Sunan Tirmidhi, no. 1184 & Sunan Ibn Majah, no. 2039)
Keeping these three points in mind, your brother’s marriage to his wife has unfortunately come to an end and three divorces have come into effect making the divorce irrevocable. You state that your brother requested for the divorce certificate to be prepared and he then signed this certificate although he had no real intention of divorcing his wife. In light of the above, it is clear that divorce takes place even when one does not intend it, as long as it is a clear divorce. A witness signing the divorce certificate is also not a pre-requisite for the divorce coming into effect. As such, due to the divorce certificate clearly stipulating three divorces, his marriage with his wife is over and she must observe the waiting period (idda), after which she is free to marry someone else.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK