Intention Counts When Pronouncing a Divorce, Adil Salahi

Intention Counts When Pronouncing a Divorce

Adil Salahi

Arab News, 6/20/04

Q. After three years of marriage, during a quarrel with my husband, he said to me Talaq, when I was pregnant with our first child. However, we sorted out our quarrel and resumed our married life. A year later, the same thing happened again, but my husband says now that he does not remember it. A year ago, i.e. two years after the second incident, another quarrel took place, during which my husband said Talaq six times and then said, ‘I am giving you divorce’, repeating it twice. At the time I was pregnant with our second child. A few days later we made up and resumed our married life again. However, someone told us that now we are fully divorced and cannot live together. Please explain.

(Name and address withheld)

A. I cannot give you a valid opinion about your situation unless you confirm what was your husband’s intention when he said the word Talaq, on each of the three occasions. You see, the word means ‘divorce’, and if it is said on its own, it could mean anything. A divorce process is set in motion when a husband says to his wife, ‘I divorce you’, or words to this effect. The word your husband used could mean different things, depending on his intention. It could be a threat or a warning or an actual divorce. This last possibility could be the one if both of you, or people in your community, understand it as a substitute for the sentence, ‘I divorce you’. His intention at the time makes all the difference.

If it was meant as a warning or threat, then it has no effect on your marriage. If it was intended as an actual divorce, then the divorce process was started. It counts as a divorce even though you subsequently made it up and resumed your marriage. No one can tell you anything without this clarification, which must be honest and true.

The third case is perhaps a little easier. When your husband said the word of divorce six times, he seems not to mean it as an actual divorce. Rather, it sounds as someone considering the matter, repeating it time after time.

What makes me say so is the fact that he followed this with the sentence, ‘I am giving you divorce’. This sounds as though a process was going through his mind, first considering the possibility and then making a decision. Now the other sentence, ‘I am giving you divorce’, could be interpreted as a declaration of intent or as taking an action there and then.

If it is a declaration of intent, it has no effect on your marriage until the intention is carried out. If it is an action being taken, the repeated sentence counts as one divorce. Again only you and your husband could determine this.

What you have to do is a heart-search exercise, determining the intention in each of the three cases. The fact that your husband does not remember the second case is problematic, with scholars having different opinion in such a case. Your husband should try to remember, making an honest effort, and keeping in mind all the time that it is a question of making your marriage lawful or making it a relationship of adultery.

He cannot deceive God. So, if he honestly does not remember divorcing you on the second occasion, then it did not happen. If he is in doubt and you are clear that he did, then a second divorce took place, and now you have the third one.

Assuming the worst, if he says that on each of the three occasions, his words meant ‘I divorce you now’, then you have exhausted all possibilities of reunion in marriage. Since you have resumed married life, this is totally invalid and you are living in sin. You must separate immediately and you cannot be re-married again, unless you first marry someone else and live with him intending that this marriage is permanent. If this other husband then dies or divorces you at a future time, then you can go back to your first husband.

But you must understand that this cannot be arranged so that this marriage is meant for a short duration, in what is known as halalah. Halalah is forbidden and cannot have any effect on whether you can return to your husband or not.

On the other hand, if your heart-search exercise indicates that on one or more of the three occasions, he did not intend his words as an actual divorce, but as a threat or a declaration of intent, then you can remain married.

The number of divorces you have had depends on which occasion was a divorce and which was not.

Having said this, I should warn you that in such a matter you and your husband have to be very honest with yourselves and with God. It is far better that you should separate, if you have had three divorces, and never reunite than to live in sin for the rest of your lives. You will be facing God on the Day of Judgment, and He knows for certain your intentions and your secret thoughts. You cannot cheat Him. Hence, be honest with yourselves, at least for the sake of your children and determine your case as it is.

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