Fatwa #1499819 March 2007South Africa
Kinaaya Divorce
Question
About 3 years back my wife and i moved to a new place because of financial reasons . we discussed the move for about six months before we moved . during this time we had a few problems , but sorted it out . just when i thought that we had passed this phase of our lives things got worse . we began fighting more and more . during one of these fights i told her in an enraged state to pack up her stuff and leave if she so wished . i also asked her if she wanted a divorce from me , if it would make her life better . alhumdulillah it did not come to this . and today we are at peace with each other . My question is , i have recently been reading about family breakdowns and such related problems , and am wondering if our nikka is still valid , i cannot recall how many times we have decided to end our marrige .
Answer
In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatoh
Your statement “to pack her stuff and leave” falls under the category of Kinaayah (ambiguous) divorce. In Shariah, a Kinaayah divorce is suspended on the intention of the husband. If the intention of the husband was to not to issue a divorce when saying these words, one irrevocable (Talaaq e Baain) will take effect. However, if the husband had no intention of divorce, no divorce will be effective (Qudoori Page 144 Qadeemi).
The second statement “if she wanted a divorce from me, if it would make her life better” does not constitute divorce. ( Ibid Page 148)
According to Shariah a divorce will not take effect if one merely intends a divorce. The husband must verbally say the words of Talaaq in order for the divorce to be effective.
And Allah knows best
Checked and Approved by:
Mufti Ebrahim Desai