Pronouncing divorce 3 times

Jul 27, 2021 | Divorce

-Q: My husband said to me, “You are divorced, you are divorced, you are divorced!” Is this considered as one divorce or three?

A: One should always consult a scholar personally for matters relating to divorce so they can assess the situation properly. Many people in our communities believe that if a divorce is not pronounced three times all together then it is invalid, this is a grave error and leads to many problems. Even though there were a small minority who had other views regarding the matter from the early generations, a general position of the 4 schools is outlined below.

Hanafi:

A pronouncement of three divorces is prohibited and extremely sinful however the divorce does take place and is final. As mentioned in the following narrations from Abdullah bin Umar and Abdullah bin Abbas:

وحَدَّثَنِي زُهَيْرُ بْنُ حَرْبٍ، حَدَّثَنَا إِسْمَاعِيلُ، عَنْ أَيُّوبَ، عَنْ نَافِعٍ، أَنَّ ابْنَ عُمَرَ، طَلَّقَ امْرَأَتَهُ وَهِيَ حَائِضٌ، فَسَأَلَ عُمَرُ النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، فَأَمَرَهُ أَنْ يَرْجِعَهَا، ثُمَّ يُمْهِلَهَا حَتَّى تَحِيضَ حَيْضَةً أُخْرَى، ثُمَّ يُمْهِلَهَا حَتَّى تَطْهُرَ، ثُمَّ يُطَلِّقَهَا قَبْلَ أَنْ يَمَسَّهَا، فَتِلْكَ الْعِدَّةُ الَّتِي أَمَرَ اللهُ أَنْ يُطَلَّقَ لَهَا النِّسَاءُ
قَالَ: فَكَانَ ابْنُ عُمَرَ إِذَا سُئِلَ عَنِ الرَّجُلِ يُطَلِّقُ امْرَأَتَهُ وَهِيَ حَائِضٌ، يَقُولُ: أَمَّا أَنْتَ طَلَّقْتَهَا وَاحِدَةً أَوِ اثْنَتَيْنِ، إِنَّ رَسُولَ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أَمَرَهُ أَنْ يَرْجِعَهَا، ثُمَّ يُمْهِلَهَا حَتَّى تَحِيضَ حَيْضَةً أُخْرَى، ثُمَّ يُمْهِلَهَا حَتَّى تَطْهُرَ، ثُمَّ يُطَلِّقَهَا قَبْلَ أَنْ يَمَسَّهَا، وَأَمَّا أَنْتَ طَلَّقْتَهَا ثَلَاثًا، فَقَدْ عَصَيْتَ رَبَّكَ فِيمَا أَمَرَكَ بِهِ مِنْ طَلَاقِ امْرَأَتِكَ، وَبَانَتْ مِنْكَ

Ibn Umar reported that he divorced his wife during the period of menses. Umar asked the Messenger of Allah, and he commanded him (Abdullah bin Umar) to take her back and then allow her respite until she enters the period of the second menses, and then allow her respite until she is purified, then divorce her before touching her (having sexual intercourse with her), for that is the prescribed period which Allah commanded (to be kept in view) for divorcing women. When Ibn Umar was asked about the person who divorces his wife in the state of menses, he said If you pronounced one or two divorces then Allah’s Messenger has commanded taking her back and then allowing her respite until she enters the period of the second menses, and then allowing her respite until she is purified, and then divorce her before touching her (having sexual intercourse with her). Although if you have pronounced three divorces, then you have disobeyed your Lord with regard to what He commanded you about divorcing your wife and she is irrevocably divorced.[1]

حَدَّثَنَا حُمَيْدُ بْنُ مَسْعَدَةَ، حَدَّثَنَا إِسْمَاعِيلُ، أَخْبَرَنَا أَيُّوبُ، عَنْ عَبْدِ اللَّهِ بْنِ كَثِيرٍ، عَنْ مُجَاهِدٍ قَالَ: كُنْتُ عِنْدَ ابْنِ عَبَّاسٍ فَجَاءَهُ رَجُلٌ، فَقَالَ: إِنَّهُ طَلَّقَ امْرَأَتَهُ ثَلَاثًا، قَالَ: فَسَكَتَ حَتَّى ظَنَنْتُ أَنَّهُ رَادُّهَا إِلَيْهِ، ثُمَّ قَالَ: ” يَنْطَلِقُ أَحَدُكُمْ، فَيَرْكَبُ الْحُمُوقَةَ ثُمَّ يَقُولُ يَا ابْنَ عَبَّاسٍ، يَا ابْنَ عَبَّاسٍ، وَإِنَّ اللَّهَ قَالَ: {وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مَخْرَجًا} [الطلاق: 2] ، وَإِنَّكَ لَمْ تَتَّقِ اللَّهَ فَلَمْ أَجِدْ لَكَ مَخْرَجًا، عَصَيْتَ رَبَّكَ، وَبَانَتْ مِنْكَ امْرَأَتُكَ، وَإِنَّ اللَّهَ قَالَ: {يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ} [الطلاق: 1] فِي قُبُلِ عِدَّتِهِنَّ

Mujahid said I was with Ibn Abbas when a man came to him and said that he divorced his wife by three pronouncements. He kept silent and I thought that he was going to restore her to him. He then said “A man goes and commits a foolish act and then says ‘Oh Ibn Abbas! Oh Ibn Abbas!’ And indeed, Allah said ‘And for those who fear Allah, He provides a way out (for them).’ Since you did not fear Allah, I did not find a way out for you. You disobeyed your Lord and your wife is permanently separated from you. Indeed, Allah said ‘Oh Prophet! When you divorce women divorce them in the beginning of their waiting period.’”[2]

Many people in our communities believe that if a divorce is not pronounced three times all together then it is invalid, this is a grave error and leads to many problems. Firstly, as mentioned above such a person will be extremely sinful. Secondly, this constitutes a final divorce (Baynunah Kubrah) and it is not possible for these two people to remarry, even if they were to perform a new marriage (nikah) it will be invalid and they will be living together in sin if they remain together. Allah said in the Holy Quran:

الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَئِكَ هُمُ الظَّالِمُونَ

Divorce (may be revoked) twice, whereupon the marriage must either be resumed in fairness or dissolved in a goodly manner.[3]

The above verse limits the option of resuming a marriage to two divorces, and as mentioned explicitly in numerous narrations, once the number of divorces reaches three then there is no option to reconcile or continue the marriage.

The Hanafi scholars said that three divorces at one time is an innovation and thus prohibited:

وَاعْلَمْ أَنَّ الْبِدْعِيَّ عَلَى نَوْعَيْنِ بِدْعِيٌّ لِمَعْنًى يَعُودُ إلَى الْعَدَدِ وَبِدْعِيٌّ يَعُودُ إلَى الْوَقْتِ وَقَدْ بَدَأَ بِالْأَوَّلِ فَقَالَ (وَبِدْعِيُّهُ) أَيْ بِدْعِيُّ الطَّلَاقِ عَدَدًا (تَطْلِيقُهَا ثَلَاثًا، أَوْ ثِنْتَيْنِ بِكَلِمَةٍ وَاحِدَةٍ) مِثْلُ أَنْ يَقُولَ أَنْتِ طَالِقٌ ثَلَاثًا، أَوْ ثِنْتَيْنِ وَهُوَ حَرَامٌ حُرْمَةً غَلِيظَةً وَكَانَ عَاصِيًا لَكِنْ إذَا فَعَلَ بَانَتْ مِنْهُ

“Know that the innovated divorce is of two kinds, one relates to the number of divorces and the other relates to the time of occurrence. As for the first, it is to divorce thrice or twice in a single statement, like saying, ‘you are divorced thrice’ or ‘twice’, this is severely prohibited. He is sinful in doing so but the divorce is effected and final.”[4]

As for the divorce occurring Ibn Mawdud al-Mawsili states:

“Because of his (the Prophet’s) statement ‘every divorce counts[5]’ and as for him being sinful, it is for contradicting the sunnah and the consensus of the companions.”[6]

Maliki:

Al-Imam ad-Dardir defines in his Sharh as-Saghir ‘ala Aqrab al-Masalik divorce as being of two types: In accordance with the sunnah or innovative (بدعي).

To be in accordance with the sunnah it must be a single and complete divorce, while the woman is pure (not during her period), in a cycle of purity where they did not have intercourse, and it must not be during an ‘iddah consecutive to a divorce allowing her return.

To pronounce a formula that implies divorce three times at once is a deviant innovation, and as mentioned by Imam al-Dardir, it is haram. Imam al-Dardir then says that the fact it is binding (even though it is haram) is a consensus of the ulama, as transmitted by Ibn Abd al-Barr and others.[7]

والإجماع على لزوم الثلاث إذا أوقعها في لفظ واحد نقله ابن عبد البر و غير

Shafi’i:

When a man gets married and later during the marriage divorces his wife, he is allowed to take her back without having to make a new contract as long as he does so before her waiting period (‘iddah) finishes. He can do this twice only with his wife. The first two divorces are known as Baynūnah Sughrā. However, if he divorces his wife three times, he cannot take his wife back until:

a) she marries another man then;
b) consummates that marriage then;
c) she is divorced from that man then;
d) she completes her waiting period (‘iddah).

This is called Baynūnah Kubrā.

The chapter regarding divorce is lengthy and has many detailed issues within it. However, in general, if a man says to his wife, “You are divorced thrice”, then all three divorces have fallen and the baynūnah kubrā has taken effect.

It is important to note that the issue regarding a man saying to his wife, “You are divorced thrice”, is a matter with which scholars have reached a consensus (ijmā’) and it is not permissible to follow any other opinion contrary to this. Shaykh Jamal ud-Din Muhammad b. ‘Abdul-Bari al-Ahdal, may Allah have mercy on him, said in ‘Umdat ul-muftī wa’l-mustaftī:
“It is not permissible to follow the opinion of the one who says that three divorces in one sitting brings into effect only one divorce. In Fatāwa’l-Ashkhar, the author said, ‘Even if there was not more than one sitting for the three divorces, all three will still come into effect according to the consensus of the companions in the time of Umar (may Allah be pleased with them) as has been reported in Saḥīḥ Muslim; and according to the consensus of the four schools of jurisprudence; and according to those scholars whom are recognised and taken as authorities. Therefore, in such circumstances, there is no turning to the ruling of Zaydi Jurisprudence who consider this form of divorce to be revocable. It is upon every ruler who is able to, to stop this judgement of theirs from passing and to clarify the invalidity of their position.’”[8]

Ibn az-Ziyad also said similar to this in his Fatāwā and Shaykh Salim Sa’id Bukayyir Baghithan in his Fatāwā “Fatḥ al-Ilāh al-Mannān” explains this in detail, may Allah have mercy on them all.

Hanbali:

It prohibited to do so but the divorce would be irrevocable. It is stated in Muntaha al-Iradat:

وإيقاع ثلاث و لو مكلمات في طهر لم يصبها فيه فأكثر لا بعد رجعة أو عقد محرم

“The taking effect of three divorces even if it is with (several) words (like ‘you are divorced, you are divorced, you are divorced’) during a period of cleanliness or more where no sexual relations occur is prohibited – not if it is after a returning (raj’ah) or the marriage contract.”[9]

Shaykh al-Buhuti in his explaining of the above text said:

This has been narrated from Umar, Ali, Ibn Masud, Ibn Abbas and Ibn Umar due to the statement of Allah Most High, “Oh Prophet! when you divorce women, divorce them for their prescribed time… and whoever fears Allah, He will make a way out for him …and whoever fears Allah He will make easy for him his affair…”[10]

Whoever combines the three, then there remains no new thing (i.e. reunion) to pass and Allah does not make a way out for him and his affair will not be made easy.

In a hadith of Ibn Umar, he said: I said, “Oh Messenger of Allah , what do you think if I were to divorce her thrice – would it be permissible for me to take her back?” He said, “In that case, you would have disobeyed Allah and your wife would be separated from you.”[11]

On the authority of Mahmud ibn Labid who said, “The Messenger of Allah was informed about a man who divorced his wife with three divorces combined. The Messenger of Allah became angry and said, ‘Will the Book of Allah be played with while I am still among you!?’ Until a man stood up and said, ‘Oh Messenger of Allah, shall I kill him?’”

On the authority of Malik ibn al-Harith who said, “a man came to Ibn Abbas and said ‘My uncle divorced his wife thrice.’ He said, ‘Your uncle has indeed disobeyed Allah and obeyed Shaytan, Allah will not make a way out for him.’”

The effect of the divorce is the same whether it is before conjugal relations or after…

As for what has been related from Tawus from Ibn Abbas who said, “Divorce in the time of the Messenger of Allah , Abu Bakr and two years of the caliphate of Umar – the divorce of three was one.”[12]

It was narrated from Sa’id ibn Jubayr, Amr ibn Dinar, Mujahid, Malik ibn al-Harith from Ibn Abbas that which opposes this [narration from Tawus]. It was also narrated by Abu Dawud that Ibn Abbas gave fatwa in opposition to the Tawus narration.

It has been said that the meaning [of the Tawus narration] is that people used to divorce just once in the time of the Messenger of Allah and Abu Bakr. Moreover, if this not so then it would not be allowed for Umar to go against what was done in the time of the Messenger of Allah and Abu Bakr. Moreover, it is not allowed for Ibn Abbas to narrate such a thing from the Messenger of Allah and then gave fatwa in opposition to it.[13]

Answered by a collection of scholars. The Hanafi answer has been answered by Shaykh Noorud-deen Rashid at https://islamanswers.co.uk/question/my-husband-said-you-are-divorced-three-times-in-one-go/

 

[1] Sahih Muslim (1471).

[2] Abu Dawud (2197, Sahih).

[3] (Al Baqarah, 229).

[4] (Majma al-Anhur, Chapter of Divorce).

[5] Ibn Hajar mentioned that the chain is sound back to Ali only, therefore a mawquf narration. (Tagliq al-Ta’liq, 4/458).

[6] (Al-Ikhtiyar, Chapter of Divorce).

[7] (Sharh al-Saghir, Chapter of Divorce).

[8] (Umdat ul-muftī wa’l-mustaftī [2/238]).

[9] (ٍSharh Muntaha Iradat, Chapter of Sunnah and Innovative Divorce).

[10] (Al-Talaq, 1-4).

[11] (Al-Daraqutni).

[12] (Muslim).

[13] (Sharh Muntaha al-Iradat, 5:374).

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