He issued the third divorce (talaaq) and says that the first divorce was issued at a time of purity in which he had had intercourse with her.
24 Jan 2011 03:10 GMT
 
I had divorced my wife in the time of purity which we had physical marital relationship / had sexual intercourse. And after few weeks she travelled going to her home country and before travelling she asked me to write her a paper to confirm her divorce, which I did write and when she was in her home country she went to a court and made an official divorce certificate. After a period of almost six months she returned to the country where I was and we meet and re-marry again and after one year of being in marriage we divorced again and re-marry again after one year of our second divorce and now we are divorced again for the third time after being in marriage of the third period for more than four years. But we heard that our first divorce is totally laying in the category of Talaq bidaa, because I divorced her in the purity which we had a physical marriage act (sexual intercourse) which according to some Islamic scholars is not counted as a valid divorce (talaq). We both love each other but circumstances drive us where we are today (apart) and we have three children together of the age between 1.5yrs and 8.5yrs.We believe we have realize our mistake. Do we have the opportunity of being together before the woman being married by another man? - Can we be wrong (doing haram) to follow the explanation of those scholars whom consider the divorce pronounced in an unclean purity void/invalid and re-marry again? - And if the first one was not valid can we say that all are invalid since we start to count from one and not two (as the second one was due to the outcome of the first one). - If the first divorce was not valid is it necessary to re-marry her or can I just consider it did not happen and say we are still married. Please help me and I need your advice in this matter.

Praise be to Allaah.

The Sunnah with regard to divorce is for the man to divorce his wife at a time of purity (i.e., when she is not menstruating) in which he has not had intercourse with her. If he divorces her at a time of purity when he has had intercourse with her, the divorce does count as such according to the majority of scholars. 

Some scholars are of the view that this is an innovated divorce and does not count as such. 

If a man divorces his wife with an innovated divorce and counts it as a divorce on the basis of his own understanding or on the basis that he is following the opinion of the majority or the opinion of one who issued a fatwa to that effect, then the divorce counts as such, and if he divorces his wife a third time he re-examine the previous divorce with the aim of taking her back. This is a kind of haraam trickery and his wife does not become permissible for him as a result. 

Dr. Ahmad ibn ‘Abd al-Rahmaan al-Qaadi (may Allah preserve him) said: 

I asked our shaykh -- Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him): A man took his wife to her family’s home intending to divorce her. But when he met her father he did not want to confront him with the clear word of divorce and he said: “It seems that we are finished,” or words to that effect. That was during a period of purity in which he had had intercourse with her. Is she divorced? 

He replied: This wording was accompanied by the intention, so it does count as a divorce. With regard to the fact that it was during a period of purity in which he had had intercourse with her, or a divorce at the time of menstruation, the way I issue my fatwa is as follows: 

If the question comes and the woman is still in ‘iddah, I advise the questioner that no divorce has taken place, as is the more correct view. 

If the question comes after the end of the ‘iddah, I advise him that divorce has taken place, as it is the view of the majority that the innovated divorce counts as such, because the husband believes that she is no longer married to him and that if she marries someone else after the ‘iddah has ended, it is valid.  

Then he said: I asked our shaykh (may Allah have mercy on him): A man divorced his wife three times and his wife told him that the second divorce took place when she was menstruating. Is she irrevocably divorced from him? 

He replied: I ruled that she is irrevocably divorced from him, because he divorced her believing that this was the last divorce and people did not recognise divorce during menses as anything other than divorce, and they did not regard a threefold divorce as one, until the fatwa of Shaykh Ibn Baaz to the contrary became well known. After that, if a man’s wife became irrevocably divorced from him, he would start to say things like: One divorce was at a time of extreme anger, another was when she was menstruating, and so on, in order to avoid losing his wife. 

Then Dr. al-Qaadi said: I checked with him about that and some other brothers also checked with him on the basis that he did not think that an innovated divorce counted as such, but he reiterated his fatwa that in this case it does count as such. 

End quote from Thamaraat al-Tadween min Masaa’il Ibn ‘Uthaymeen 

Based on that, you have divorced your wife three times. 

And Allah knows best.


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