679. You Cannot Throw The Word Divorce

 By Ama Bint Shameem

You cannot throw around the word “divorce”. 

You must take it seriously. 

It is so serious that words of divorce count even if a person is joking about it. 

The Prophet Sal Allaahu Alaiyhi wa Sallam said: 

“There are three matters in which seriousness is serious and joking is serious: marriage, divorce and taking back (one’s wife).” (Abu Daawood 2194, at-Tirmidhi 1184, and Ibn Maajah 2039; hasan by al-Albaani in Irwaa’ al-Ghaleel 1826).

Ibn Taymiyah said: 

“With regard to a divorce issued in jest, it counts as such according to the majority of scholars. Similarly, a nikaah (marriage contract) done in jest is also valid, on the basis of a marfoo‘ hadeeth. 

This is what is narrated from the Sahaabah and Taabi‘een, and it is the view of the majority.”

(al-Fataawa al-Fiqhiyyah al-Kubra 6/63)

But sometimes a person does not know the ruling and is *ignorant* of the seriousness of it. 

Or the person may be saying the words to scare or threaten the wife or using the words in ambiguous way etc. 

So though this should not be condoned in any way, but the intention must be looked at and each case should be considered individually. 

2. And yes it’s true that any woman who wants to get married must have a wali, according to the *majority* of the scholars. 

And that’s the *correct* opinion. 

The Prophet Sal Allaahu Alaiyhi wa Sallam  said: 

“There is no marriage without a guardian (wali).” (at-Tirmidhi saheeh by al-Albaani) 

And he Sal Allaahu Alaiyhi wa Sallam said:

“There is no marriage except with a wali and two witnesses of good character.” (al-Bayhaqi- saheeh by al-Albaani)

However if someone did not know that or they married following the opinion of a scholar that allows for a woman to marry without a wali, believing that this is valid, then we cannot say that they are committing zina or that their children are illegitimate. 

According to the Hanafi scholars, the presence of a wali is not a condition for the validity of the marriage as long as there are at least two witnesses and the marriage is announced. 

If two witnesses are not present, then the marriage is not valid according to them.

Although this view is not the correct opinion, and people need to be educated about it, any marriage done without a wali is considered valid according to the Hanafis. And to say that each and every one of their marriages are invalid is a big statement.

The scholars said:

“Given that there is a difference of opinion among the leading scholars regarding this matter, and that it is an issue that is subject to ijtihaad, if a Muslim lives in a country which follows the Hanafi madhhab and regards a marriage contract done without a guardian as valid, and the marriage contract was done on that basis, then it may be deemed to be valid in that case, and the ruling of the court is not to be annulled.”

(Islamqa Fatwa 381188)

Ibn Qudaamah said:

“If a judge rules that this marriage contract is valid, or the one who did the marriage contract is a judge, it is not permissible to annul it. 

The same applies to all marriages that are done in an inappropriate way.”

(al-Mughni 9/347)

And Allaah knows best.