Answered by Sidi Moustafa Elqabbany
My ex-husband and I were separated for about 3 months before he divorced me. I went back to my home country. He told me of his intention to divorce me. He finally did it by saying “I divorce you” on the phone.
My question is: Is the divorce valid? In surah Al-Thalaaq verse 2, it is mentioned that 2 witnesses are required. I would like to know what is the Shafii’s ruling on this matter. If the divorce is not valid, what should I do. We are in different countries now and it has been two years since he said that.
The scholars of our school understand the verse you reference as meaning it is recommended (but not obligatory) to have two upright witnesses present as the waiting period (‘iddah) approaches its end and the man chooses whether to take his wife back or finalize the pending divorce. This is the understanding of the verse exposited in the Jalalayn. Furthermore, when discussing this verse, Ibn Hajar Al-Haytami says that there is scholarly concensus (ijma`) that witnesses are not required for divorce. Hence, the divorce is valid.
Looking Forward
Umm Salamah (Allah be pleased with her) was deeply in love with her husband when he died. The Prophet (sallallahu alayhi wa sallam) told her to supplicate as follows:
(inna lillahi wa inna ilayhi raji`un; allahumma-‘-jurni fi musibati wa akhlif li khayran minha)
meaning, “Truly, we belong to Allah and unto Him we shall return. O Allah, reward me in my calamity and grant me better than it.” Umm Salamah mentions that she wondered, “Who among the Muslims is better than Abu Salamah?” Allah then gave her the Prophet (sallallahu alayhi wa sallam) himself as a husband!
References
Tafsir al-Jalalayn / Surah al-Talaq, verse 2:
http://quran.al-islam.com/Tafseer/DispTafsser.asp?nType=1&bm=&nSeg=0&l=arb&nSora=65&nAya=2&taf=GALALEEN&tashkeel=0
Sahih Muslim / Al-Jana’iz / Ma Yuqal `Ind Al-Musiba:
http://hadith.al-islam.com/Display/Display.asp?Doc=1&Rec=1992
Tuhfa al-Muhtaj / Kitab al-Talaq / Kitab al-Raj`a:
http://feqh.al-islam.com/Display.asp?Mode=0&MaksamID=291&DocID=69&ParagraphID=2755&Diacratic=1
Allah the Exalted knows best and He alone gives success.
Moustafa Elqabbany
Metro Vancouver, Canada