ASKING:
Assalamu'alaikum, Ustadz.
May I ask about household matters? What is divorce or a divorce sentence like? Because, I was worried about that.
Salam,
NN
ANSWER:
Wa'alaikumussalam warahmatullahi wabarakatuh.
Talak sentence, initially talak is done by speaking. However, sometimes divorce is done through writing or signs.
First: divorce with lafazh (speech). There are two kinds of divorce: (1) talak with shorih (emphatic) lafazh, and (2) talak with lafazh kinayah (figuratively).
Divorce with lafazh shorih (emphatic), means that it does not contain any other meaning when pronounced and it is immediately understood that it means divorce. The lafazh used is lafazh talak in general which is understood from the side of language and customs. For example, someone says to his wife, "I am divorcing you", "I am divorcing you", "Not pegat kowe (I am divorcing you in Javanese).
These lafazh cannot be understood other than the meaning of divorce or divorce. So, divorce automatically falls when it is said seriously or jokingly and does not see the intention.
In essence, if lafazh talak is pronounced firmly, then talak will fall as long as the lafazh is understood, pronounced of one's own choice, even though it is not accompanied by the intention to mentally. As previously explained regarding people who are mentally abused by their wives in a state of playful or joking:
لاَثٌ لُهُنَّ النِّكَاحُ الطَّلاَقُ الرَّجْعَةُ
"Three serious cases, and joking are equally taken seriously: (1) marriage, (2) divorce, and (3) reconciliation".
Talak with lafazh kinayah (figuratively), is not pronounced specifically with the word talak or divorce, but is pronounced in words that can have other meanings. If the word does not mean anything, then it cannot mean divorce and it is considered a vain word and does not fall into divorce at all.
An example of lafazh kinayah which refers to divorce is, "Just go home to your parents' house." This sentence can have other meanings than divorce. Perhaps someone meant that his wife should just go home, but that was not the intention of divorcing.
Another example, "Now let's separate." Lafazh is not always meant for divorce. Could be, the meaning we parted on the road and so on.
So, these examples still contain ihtimal (another meaning). For this type of divorce, it is necessary to have an intention. If the sentence was intended to mean divorce, then divorce would fall. If not, then don't fall into divorce. Because the Prophet sallallaahu 'alaihi wa sallam said:
إِنَّمَا الأَعْمالُ بِالنِّيَّاتِ
"Indeed, every charity depends on the intention."
If the divorce only with the intention of the heart is not pronounced, then the divorce does not fall. Because the Prophet sallallaahu 'alaihi wa sallam said:
اللَّهَ اوَزَ ا ا ا لَمْ لْ لَّمْ
"Indeed, Allah has forgiven my people something that has been written in his heart, as long as it is not practiced or not spoken."
Second: divorce by writing. This divorce can be done via SMS, email, or correspondence. If a person is not present and he writes a message to his wife through these means, then his divorce falls when he intends to divorce.
That is the opinion of jumhur, the majority of scholars. Az-Zuhri said, “If someone writes on his wife the words divorce, then divorce falls. If the husband denies, then he must be asked for an oath ”. Ibrahim An-Nakho'i said, "If someone writes with his hand the words divorce on his wife, then divorce falls."
Another reason is that writing consists of letters that are easy to understand the meaning. If this is done by a man when he writes the words divorce on his wife and he intends to be mental, then divorce will fall as utterance.
However, for writing via electronic devices, it is necessary to emphasize that the writing was actually in the form of SMS, email, or fax from her husband. If not and only someone else's engineering, then clearly do not fall into divorce.
Third: Divorce by sign. If the husband is capable of being mental with words, then it is not legal if he does the divorce only on signs. According to jumhur, the majority of scholars.
Except for the mute person, who cannot speak, the divorce falls if he does so on cue. However, the Hanafiyah ulama and also Syafi'iyah's opinion think that if the mute person is able to do it in writing, it is better in writing. If not, then invalid. Because divorce through writing is more indicative of what is meant, it is different if only by sign except in an emergency situation due to inability.
Does Divorce Have to Be with Witnesses?
According to the majority of scholars from among the salaf and madzhab priests, it is advisable to have witnesses in divorce because this protects the rights of husband and wife and does not cause problems in the future if there is still debate. Allah Ta'ala said:
فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَنَشْهِدُوَّ فَارِقُوهُنَّ بِمَعْرُوفٍ وَنَشْهِدُوه موِ
"When they have approached the end of their iddah, then refer to them well or let them go well and witness it with two witnesses who are just among you and let you uphold the testimony because of Allah." (QS. Ath Tholaq: 2)
Among the reasons why the witness here is not obliged is because in another verse the sentence for divorce is not accompanied by a witness. Likewise in several hadiths. And, divorce is the right of the husband and there is no need for supporters, because it is his right. This is the same with other testimonies.
Allahua'lam.
(Answered by: Ustadz Imam Alfaruq, SEI, ME)
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