#15 Fiqh of Family – Book of Divorce (Explicit and Implicit Divorce)
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Family
File Size: 25.41MB
so I'm about to proceed today we'll have a chapter on explicit and implicit divorce. But we're sorry heterarchy working at Magna Carta American Allah died in the year 620. After the hedger said in his book on that effect
sorry who loves the tilapia mozzarella minimum Coco Li antibiotic amatola autolock the explicit words of divorce are Pollock are the is the word of Tilak itself, which is the master the verbal noun and those that are derived from it such as you are thought of adjective or you are motor Lukla adjective in the passive voice or I divorced you for locked up high diversity.
So why is it? Why do they have to make a chapter for the lock? And sorry, have to lock and where is it all coming from? It is all coming from the fact that Allah gave men, three divorces
and did not allow them to take the women women, the women back after three divorces.
That meant that we have to count the divorces.
And that meant
that we have to figure out which divorce counts and which divorce doesn't count. Right. So all of this, all of the basically, detailed chapters on different types of talaq
have to do. The origin of this has to do with the divine objective, that men don't keep on taking their women back into marriage, when the marriage had proven once, twice, thrice, that it is a failure. Like we said before, sometimes people get stuck into certain relationships. And some times people get stuck into sort of
certain life arrangements that they have, that they feel that they cannot survive without them. And the last minute Allah is saying to them, no, there is life beyond this, beyond this life arrangement, whether it's marriage or something else, but there is life beyond this. So if it has proven a failure three times, when maybe then both of you are better off looking for some other arrangement.
Now, so we have to count, and now we have to figure out what counts. And now sometimes we'll go to court because sometimes, the woman says, He gave me a divorce, and the man denies it, and they'll have to take each other to court. And now the court will have to sort of
sort of adjudicate this matter.
So, we have all of this coming from that source.
So sorry, hatanaka. Can it Why do we have to separate between study heterogeneity between the explicit and implicit divorce words that are explicit and words that are implicit? What are words that are implicit, we're done
a lot of words, you know, in Happy baddeck go to your family or
return to your family, something of that nature
implicit, but certainly not explicit. And then there are words that are
disagree is a sort of controversial Sartre Serato key, you know, fadak to key with some words are controversial. The shape here says that what is except less it, you know, in the matana, you know, in the math lab, what is explicit is the where the talaq has a verbal noun,
hand, anything that is derived from the word catalog, whether it's an adjective adjective in the past voice or like verb
for matter atrophy. And the reason why we have to make the distinction is because sorry, how Pollock explicit divorce accounts, regardless of your intention.
You could have intended whatever, but we will come to this later.
Are we gonna come to it or should I discuss it
Okay, maybe the next I'll discuss with the next phrase. So
the difference is sorry hautala explicit divorce counts regardless of intention, in play, generally speaking, and we will come to some details now. But implicit divorce,
needs a needs an intention to count in place a divorce needs an intention to count. So if someone says to his wife,
you're free, we're done something. If he intended to divorce her by this word, it counts as divorce.
The Shackleton said for matter. atapi bizzarri had Pollock, follow cut, we're in the meanwhile he when he speaks and explicit word of Tilak, she becomes immediately divorced, even if he did not intend.
Why even if he did not intend,
even if he did not intended, because the luck usually is not about a person, this is not like an oath or a vow.
This is about a relationship that involves two parties.
And so it is not only up to you to say what you intended. If you say something that is explicit, it is not really up to you only, there is someone here who heard it, and someone who will take you to court, you know, so even if he did not intend it, so here is the breakdown of this, even if he did not intend. So we have three different scenarios.
He said to his wife, you are divorced.
And keep in mind,
does it come later or it doesn't come? If he said to his wife, you are divorced in any language other than Arabic.
That is explicit a word of explicit divorce, it will count as explicit.
Such as divorced in English, will count as an explicit word of divorce.
Because some people think that it doesn't. And you have to say that Arabic, no eight counts. And it counts according to the majority, even without witnesses, counts according to magic. If you have two witnesses will know the language and who can testify that this means except less of the horse. But anyway, that's a technicality. But there are say that divorce in any language, except less words of divorce in any language, count as the acceptance of word of divorce in Arabic is not clear. Okay, we're done with this. So now, if someone says that his wife You are divorce, your thoughts are divorced, expressed for the divorce in any language.
Then he says I did not intend.
Now, did he actually intend to say the word but he did not intend the to initiate the divorce.
So he intended to say the word ingest
whatever, like, you know,
he just wanted to frighten her you want to save and just something
but he did not intend to divorce her. This counts by the agreement of the former because the Prophet sallallahu Sallam said in a hadith somewhat somewhat controversial but accepted by many scholars including through mizzi and others.
Said Saracen did the one who has the Honda Jeep and nikka hatanaka Raja three things which are undertaking seriously or ingest they are treated as serious
nikka marriage, Portlock divorce, Raja taking back your wife after divorce the counters.
Now, we will add to this also emancipation in some other reports.
if he said it in jest, it will count according to the format.
But this say he
but he did not mean to lock my chest not mean not he did not mean the word of talaq
but he was laughing or playing or you know, scaring her or whatever. But he meant
to say, pilot for a different
Meaning, because the word is plenty semuc
who are he meant to say?
And that they, they sort of hypothesize, and they say spinny man, and when he told her to lock talk or sunlight, you know, give me water and then it comes out of his mouth, you're taller or something like he meant to say something else. He meant to say anything else, and just came out of his mouth
with a lock or some somewhere that came out of his mouth. So, in this case,
in this case, he said, to mean something else. Why? Because what the startup mean, released, free release, etc. If she was tied hand, he meant if she was tired, and he meant to say you are free of your thighs,
or, you know,
whatever it is, like whatever he meant, he meant to say tarlac meaning released.
What do we do in these two cases? He comes in says, I meant to say, huh,
physically tie this.
Yeah, it was like a rope.
Why do we say what what happens here? Now we have one of three scenarios. And actually, I looked at the book and I mentioned two out of three even though
we have one of three scenarios. One scenario is when there is a Kareena that is complimentary pro four supplemental proof or corroborative evidence corroborative evidence
Kareena that he actually meant it, Kareena
that he actually meant it
that he actually did not mean it.
And no Purina. Right. Can you think of anything else? Any other option? There is corroborated proof that he meant it could be approved that he did not mean it. No corroborative proof. So corroborated proof that he meant it, they were fighting and he said to her, you're taller, you know. So that's probably the proof that he meant
in this case, by agreement of the form of hemp, she has power. It is effective.
What about if there is no Kareena
no Purina either way to tell us whether he meant it or he did not mean it no Purina
in this case,
by the agreement of the form of habit is effective.
Why? Because it is explicit.
It is explicit.
What if it is what if there is Karina
that he did not mean it.
Like they were really having a good time. And then they're like having lunch or a good time. And then he was talking to her and he told her your thought person or she was actually tied physically. And then he undid her ties, and he told her in photography are now released, released. So there is now a Kareena that he did not mean it. Whatever there is a Kareena that he did not mean it. What happens in this case.
So the Maliki's chef is hand hand bellies?
Well, when when accepted,
that Hana fees when say that you die young, meaning that we'll leave it up to him in terms of whether it actually happened or not. But we will not accept it in court.
Because it is unlikely,
unlikely, so we will not accept it in court. So what does that mean?
What is what about the wife in this case? The Hana fees will not allow her to believe him.
They will tell her to run away from him.
Or to sort of ransom herself from him by money or run away from him run away from him, they will not allow her to kill him.
They actually mentioned that they clearly say that
but they, they will, they will tell her to run away from hammer, you know, and so herself, you know.
But anyway, but they will not accept it that is so this guy, you know, it is possible that this guy actually didn't mean it. They're just telling her that even though between him and God
whatever he meant would count. But you since you heard that, you should
treat this as a divorce. And you are not allowed to
to be with him as a wife. So run away giving money to divorce you do something about it, but don't kill them.
So these are the the three scenarios, the three scenarios, someone said to his wife, your thought and then
said I did not mean it.
is you know, since we are from Belize, Belize, what do they say here?
They say that if she believes him and does not take him to court, then that is fine. We're not going to get into this. We're not gonna get into the bid their business among themselves. If she has a reason to believe him. She has a reason to believe him and does not take him to court. It is it is it is fine.
If she does not have a reason to believe him and take him to court, the honeyberries would say
Purina that he meant it.
Effective. No Kareena, effective.
Kareena he did not mean that the hamburgers are not clear about this, by the way, the sapphires are more clear about when there is a Kareena that he did not mean it, it does not count, and we will accept it from him. accept his claim. The homies are not clear about this. But there are two reports from him. Mr. Mud, you know, the later ham bodies are not clear about this. In fact, if you read the data from Verizon, you think about the the thinking that it will not be accepted from him. And in all cases, the earlier ham buddies did mention that the memo was clear about
that it would not count against him. If he did not mean it, and the two reports for me now that it counts and does not count. The best way to reconcile between the two reports is to say that
one report applies to when there is a perina that he did not mean it and one report to be under the witches that it will count will be effective is when there is no Kareena that he did not mean
Pollock talaq talaq rotten luck, any sorry Pollock or any explicit Pollock.
So then the sheikh said well my other homie McNamara talaga, Kenai, Allah kabhi, tala, in any anywhere, otherwise all implicit words that could mean divorce will be treated as metaphors and their ultimate interpretation will depend on his intention. So anything else depends on it. And you the answer is implicit in divorce will depend on his intention if he meant divorce then it
otherwise it will not take place. What about writing, texting divorce,
it is certainly impolite and rude. You know to end the relationship of this nature by texting.
But what if someone did
okay, writing divorce.
We went even though they may consider it excellent. They may call it explicit, but they treat it as implicit.
there is disagreement within them as I have all the form as I have there is disagreement inside the
but the stronger position is
It is treated as implicit. That Hanbury is particularly say, if he claimed that he was just trying the pen.
That was he was improving his handwriting.
They even say hello to him. If he said, I meant to
annoy her or frighten her, or cause her grief,
we will accept it. It may be a little inconsistent, because if he said this about a variable were like a variable divorce, they were not accepted.
But if he wrote his wife a text, you are divorced, and he says, that was trying to keyboard
they will accept it.
And maybe it may sound inconsistent. But at the end of the day, they're treating the writing not as strong as the verbal pronouncement. Because the default for them when it comes to divorce is the variable pronouncement. What if someone divorced his wife in his heart?
No, it doesn't count.
It does not count. There has to be a verbal pronouncement. What if he's mute?
Only the mute his signal will be accepted.
Only mute people, the signal of divorce will be accepted. But the voice by heart does not count. That's why, you know, upset, obsessive people, OCD people who do divorce their wives all the time, internally. You just assure them, no problem whatsoever. Even if he divorced her 100 times, there is no problem. It is the verbal pronouncement.
Okay, so I think that's clear. So writing here is treated as if it is implicit, not explicit, we need the intention. What about if someone writes in the court of law? How are we counting this or not?
We should count this unless there is clear indication that this was done in a non shadow a court under coercion.
it should count because the circumstance does not allow for other sort of intentions. I mean, you don't go to court to improve your handwriting.
Or, you know, anything, you know, try the keyboard.
So writing in court signing in court won't count against him unless he proves that he is under duress.
So it's not clear. Clear. Then the sheikh said for Al Qaeda Allahu Allah Camerata in Kerala, Kerala young we can say lamport look when Carla Tom luck to her follow pathway now, because
if if a man is asked, Do you have a wife and he says no intending to lie, she does not become divorced because he did not utter the word of divorce. However, if he says I divorced her, she becomes divorced even if he intended to lie.
So what they are trying to say is, this is not only about you, the word of divorce is about a relationship that has two parties involved in it. You do not use this word at all lying just thing anything. If you use it, we will count it against you. Is that clear? And that's also fair, because if we allow people to use it, and just to use it while lying, how would the woman know if he was lying or not lying or adjusting or not?
Then it says here we're in Kerala Marathi aunty Valley, Albury Alba in our back, our back yard we tilaka Paulo Casillas and inland Ian we do not have another heavy Jacobi. We're headed inland nyslrs and
he will mention here certain words that in Arabic are very strong words of divorce, strong words. That is why in the authorized review of the Hanbury method which he does not
accept to hear
In this book, but then the authorized view according to the later hand varies, these words will count as three divorces regardless of what he intended. These words will count as the divorces regardless of what he intended. him having Kodama here takes the other position in the Hanbury Math Lab, that these words will count as one divorce and not three. So he says, if he says to his wife, you are familiar.
Familiar means what
falaya means like free of ties or you know, NACA halaya, untied camel, NACA halaya, untied cam or barrier barrier means what? From Bara from innocence from free of liability, free of liability, free of burden, free of the burden of marriage or baton baton means what we say finalized
becomes a from Bane which is separation, you know, separation
or better, but that comes from that, which is cutter, which is cutting
or batla, you know, how we use, say madhyama to mariamman bittul, because she has, she's celibate, no man and her life. So, any intending if he says any of us intending to divorce her, she becomes divorced three times unless he intended less than that, intended less than that, and now in the authorized the view of somebody must have whatever he intended, it would count as three here, it will count as three only if he intended unless he intended less than that.
And the other view of the company must have they will not question what he intended. Yes.
Or any one of these words counts as three
regardless of his intention according to the authorized view of the combatting method, but here he says it becomes he becomes he becomes divorced three times unless he intended less than that, aside from that the divorce would always count as a singular divorce unless intense a composite threefold divorce. So aside from these words, the divorce would always count as one unless he intended the composite three for divorce. What about three these words? These words by default means three, but we will still he here he says we will still ask about his knee there and the authorize the view according to the other companies, they will not ask him about his nails just countless three
Okay, when firearm Ratan Tata Tata Tata Haider, if he gives his wife the choice and she chooses separation she is divorced one time. Well inland Dr. Zelda halloumi. Akashi, Tata, Aisha radiallahu anha Kiana Rasulullah. here if I can follow up if she does not choose or if she chooses to remain with her husband, no divorce takes place I showed her the other one has said the Messenger of Allah sallallahu Sallam gave us the choice. Was that a divorce? This is a rhetorical question to say wasn't a divorce, just the choice
what I said a hand elephant medalist in Narnia tada tada tada who have him about, she is not entitled to choose except in the same session when he gives her the choice, unless he gives her the option after that.
So if someone says to his wife,
choose yourself or
gives her the choice. All of them as I have accepted the honeyberries will give her the choice as long as they are in the same session.
Only the ham bodies would extend it until he can.
Only the ham bodies would extend it beyond the session on to the hearing cancer. So someone can give his wife the right because if he has the power to to initiate divorce, does he have the power to have an Asian to authorize someone to divorce her?
Yes, he does, including herself. He can authorize her to divorce herself. And this would be valid until he or he can
Because of is the ASEAN meaning give the one authorized by default, the primary authorized by default, then he can take it back from the workI agent. So but he can give her that right and tell her cancer.
hanafy is masochism Shafi say he can get if she does not take it in the same session when they're sitting in the same order.
In Egyptian, the same madness, this is the same session. Then
she loses it.
She loses the right to divorce herself has been the same session. The Hanbury is do what extend that afterwards until he re cancer.
Now we have talked before about the HANA fees, given her the right to divorce if she demanded it has a prenuptial agreement.
Right. Do you remember this? She demanded this in the prenuptial agreement. The Hannity's will get
the ham bellies, we'll give it to her during the marriage
until he cancelled
and then when callaham rookie big key, how talathi nepsac key for our V hat if Safa how we are.
So, when he gave her the choice, she had to use it in the same session unless he gives her the option to use it afterwards, then she can use it afterwards, the choice, you know.
And if he gives her the choice, she can divorce herself multiple times.
But if he tells her to look in absarokee,
when the stronger position in the MATLAB is that she is able to divorce himself once. But if he gives her the choice, she's able to divorce multiple times. If she gets if she if he gives her the choice, hit the toy, which means it's up to you choose, you know, it's in the same session according to the majority except for the ham bellies. But he would have to say
you have the option after this. He will have to give it to her. But if he says to her, your mother's in your hand or divorce yourself, then it is up to her unless he resets the authorization or has intercourse with her.
So if he says there are your memories in your hands, or give yourself divorce yourself, he does not have to give her the option after the session. She automatically has it until he or his sense, until he retracts until he cans takes him back. But you automatically has it. You know it's up to you. She could divorce herself anytime.
Is this advisable? No, it is not.
Let's say this
Well, one of the things that we can say is that the man is responsible for all the expenses of the marriage and divorce and custody and that is islamically
and the hardener compensation for custody and all of that. Does that make him more hesitant
than the woman?
Yes, it would make him more hesitant.
That is even saying that they don't have inherent differences
that would make him less emotional
and less likely to divorce. Although many of you know it's you know, it's complicated nowadays. But
but it is also true that it is not only about inherent differences, but it is also about the system. Well Islam has a system. Islam makes the man responsible for the dowry. Islam makes the man responsible for the maintenance slap makes the man responsible for the motor,
which is the bereavement gift Islam makes Islam responsible for the net factor to the maintenance afterwards. Islam makes the matters
sponsible for havanna which, for the in Africa on the decades and alternative hardener compensation for the for the custodian, that the mother of the kids, she will sit at home, and she will tell him, you know, I'm taking care of your kids. I'm not gonna do it for free. You'll have to pay me a compensation for my taking care of your kids. Islam demands the man to do this. A system that gives puts all of these responsibilities on the man. If it does not give him the right to divorce. It is utterly unfair.
It would be utterly unfair to give the right to divorce to the woman and yet make all of those demands of the man would be utterly unfair.
Hope this is and I can take questions also comments, but I'm done quickly.
Any quick questions from this side? It's either in the unfair or not