Category: Divorce (Talaaq)
Fatwa#: 39070
Asked Country: United Kingdom

Answered Date: Oct 10,2017

Title: Marrying Ex Wife

Question

I married a lady with whom I was impressed with on a religious perspective. During the marriage, we miscommunicated often and this lead to many frustrations from both sides. We both had our issues (such as coming from two differing cultures) and unfortunately I would take on a “passive-aggressive” stance, which meant I would blow up often. A time came when I regretfully assaulted her. After this incident, two days later she went to the police and I was arrested. I had to go to court and it was a very stressful time because I had a bail condition placed upon me so I could not contact her at all. After all of this, I lost trust in her and regretfully asked her to leave my property. She moved away and found a job elsewhere. We were very upset with each other and very hurt for what happened. We could not come to terms with how things were and both wished to break free from it. I issued her one divorce.

A year on, she has contacted me and we have calmly spoke about how we feel and what we have learnt. We have both realised where we went wrong and have apologised for everything. She says she still loves me and does not want to marry any other man. I also have some feelings for her, although I had made my mind up to move on and was even looking at other prospects.

Obviously I realise my mistakes and have made sincere taubah for deviating from the Quran and Sunnah of our beloved Nabi SAW.  

The question is: Am I allowed to remarry her?

However there are two issues to this:

  1. She claims that I divorced her many times. If it’s of any relevance, she is following the Shafi madhab while I am following Hanafi. The reason she says this is because during the course of our marriage, whilst we were still cohabiting, I would say things like “leave me alone” and “I don’t want to be with you anymore”. I cannot remember the exact phrase or words, however I do know that I did not intend to divorce her, I was only making threats in the heat of the moment. Also whilst we were separated before the issue of divorce, I was never with her physically in this time.
  2. We do not have any children together and we have both moved on with our lives except that we are both still single. My parents and immediately family do not like her after she went to the police; they say I cannot trust her and do not know what steps she may be willing to take in the future. To some extent I do feel that also. If I can remarry her, should I give it another try? We both feel that with some professional help we can make it work and can have a very blissful marriage. My parents have advised me against it although it is not a direct order, yet it is a strong sentiment. With the trust issues to hand, I feel unsure.

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

There are two issues in your query.

One is whether the statements uttered in the heat of the moment constitute divorce or not.

Secondly, you are unsure about pursuing the marriage.

1) In principle, if one issues a divorce with a clear and express statement of divorce for example “I divorce you”, then that constitutes one revocable divorce (talaq raj’ee).

In this situation, the divorce will take place. However, one has the right to retract his divorce and take his wife back into his marriage within her waiting period of three menstrual cycles.

However, after the completion of her three menstrual cycles, the Nikah terminates.[1]

If he wishes to take her back into his marriage, he must remarry her.

If one makes a statement that has dual or multiple meanings and one of the meanings could mean divorce, for example “leave me alone”.

In this instance, divorce will only take place if the husband intends divorce.[2]

In the enquired situation, if you had not intended divorce (as you claim), divorce will not take place.[3]

2) The purpose of marriage is peace and happiness.

If you already examined grief and painful situations with the woman in reference, you should exercise precaution.

Consider the wise counsel of your parents and also make istikhaarah.

Do not go by your emotional feelings for this woman and her emotional expressions to you. Keep emotions aside and think carefully and rationally.

And Allah Ta’āla Knows Best

Saad Haque

Student Darul Iftaa
New Jersey, USA 

Checked and Approved by,
Mufti Ebrahim Desai.



[1] مختصر القدوري (ص: 155)

والطلاق على ضربين: صريح وكناية فالصريح قوله: أنت طالق ومطلقه وطلقتك فهذا يقع به الطلاق الرجعي ولا يقع به إلا واحدة وإن نوى أكثر من ذلك ولا يفتقر إلى النية

[2] اللباب في شرح الكتاب (3/ 41)

(والضرب الثاني الكنايات) وهي: مالم يوضع له واحتمله وغيره (ولا يقع بها الطلاق إلا بنية أو دلالة حال) من مذاكرة الطلاق، أو وجود الغضب لأنها غير موضوعة للطلاق، بل تحتمله وغيره، فلابد من التعيين أو دلالته، لأن الطلاق لا يقع بالاحتمال

[3] الدر المختار شرح تنوير الأبصار وجامع البحار (ص: 214)

(كنايته) عند الفقهاء (ما لم يوضع له) أي الطلاق (واحتمله) وغيره (ف) - الكنايات (لا تطلق بها)

قضاء (إلا بنية أو دلالة الحال) وهي حالة مذاكرة الطلاق أو الغضب،

بدائع الصنائع في ترتيب الشرائع (3/ 105)

وَقَوْلُهُ: انْطَلِقِي وَانْتَقِلِي يَحْتَمِلُ الطَّلَاقَ؛ لِأَنَّهَا تَنْطَلِقُ وَتَنْتَقِلُ عَنْ بَيْتِ زَوْجِهَا إذَا طَلُقَتْ وَيَحْتَمِلُ الِانْطِلَاقَ وَالِانْتِقَالَ إلَى بَيْتِ أَبَوَيْهَا لِلزِّيَارَةِ وَنَحْوَ ذَلِكَ

فتاوي محمودية (١٩/٦٤)

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