Metaphors of divorce according to four Schools of Fiqh

Question

Assalaamualaikum. I have a question regarding metaphorical divorce. I read that the terms “speak to your parents" and “I think you are better off without me" during an argument are metaphors for divorce. However, I am confused as to how they can be considered metaphors of divorce when no statement of separation has been made such as “leave” or “it is over" or “we are finished” etc. This is extremely confusing. “Speak to your parents” has nothing to do with separation, and “I think you are better off without me” is an opinion and not a statement that a person would think has to do with issuing a divorce. These are not commands, and they are not even indicative of separation. The definition which is quoted in one of your other fatwas says, "Kinaayah is any wording that indicates a short notice of separation but is not a common term of divorce, neither Islamically, nor according to customary practice, such as (saying), ‘Travel!’…” And “As for what is not like divorce and does not indicate separation, such as a husband saying, ‘Sit down,’ ‘Stand up,’ ‘Eat and drink,’ ‘May Allah bless you,’ ‘May Allah forgive you,’ ‘How good you are,’ and similar expressions, then these are not metaphors of divorce.” Please explain how these statements are considered to be metaphors of divorce when there is nothing to indicate separation.

Answer

All perfect praise be to Allah, The Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger. 

What you quoted from that fatwa conforms to the opinions of the scholars regarding the criterion for considering an expression a metaphor of divorce. The apparent meaning of the two examples which you mentioned, “Speak to your parents” and “I think you are better off without me” is that they are not metaphors of divorce because the criterion for considering an expression a metaphor of divorce is what was indicated by the author of the Shaafi‘i book of Fiqh Mughni Al-Muhtaaj. He said, “The metaphor of divorce is any wording that indicates a short notice of separation but is not a common term of divorce, neither Islamically nor according to customary practice, such as (saying), 'Travel!'…” It should be noted that the view adopted at Islamweb regarding the metaphors of divorce is the Shaafi‘i view.

There is much difference of opinion among scholars of Fiqh regarding the metaphors of divorce; some restrict them, while others broaden their scope. The Hanafis, for example, held that divorce does not take effect on account of a statement like, “I do not want you” or whatever conveys the same meaning, even if the husband holds the intention of divorce.

The Hanafi book Al-Bahr Ar-Raa'iq Sharh Kanz Ad-Daqaa'iq reads, “The author limited the metaphors of divorce to these wordings as a precaution in order to not consider the following as metaphors of divorce: ‘I do not need you,’ ‘I do not want you,’ ‘I do not love you,’ ‘I do not desire you,’ and ‘I have no need for you.’ Divorce does not take effect on account of these expressions even if the husband intends to issue a divorce according to the view of Abu Haneefah.”

The Maaliki scholars of Fiqh, on the other hand, held that divorce takes effect on account of every expression accompanied by the husband's intention to divorce. Khaleel ibn Is-haaq  said, “Divorce takes effect if he has the intention, even if with an expression such as: ‘Bring me water’ (while intending to issue a divorce).” At-Taaj wal-Ikleel reads, “The third kind of wording is the expressions that are not classified as expressions of divorce nor are suggestive of divorce, such as the case in which a husband says to his wife: ‘Bring me water’. If he claims that he intended divorce by saying those words then divorce takes effect.”

The Shaafi‘is held that circumstantial evidence does not substitute intention. The Shaafi‘i book Asna Al-Mataalib reads, “When the wife asks her husband for divorce or in the case of circumstantial evidence such as issuing the divorce in a state of anger and the like, this does not fall into the category of metaphors of divorce because the husband may hold a different intention contrary to the circumstantial evidence, and the wording itself only suggests it (it is not explicit).”

The Hanbalis, on the other hand, held that the circumstantial evidence can substitute the intention; accordingly, divorce takes effect even if the husband does not intend to issue a divorce. The Hanbali scholar Al-Buhooti  wrote, “If the husband does not hold the intention to divorce, divorce does not take effect except in the case of an argument or being in a state of anger or when he is responding to the wife's request (for divorce). Divorce takes effect in these three situations on account of the metaphor of divorce even if the husband does not hold the intention of issuing it given the circumstantial evidence.” [Ar-Rawdh Al-Murbi’]

The point is that this issue falls into the category of the religious issues that are open for Ijtihaad (personal reasoning by competent scholars), and hence, scholars did not hold the same opinion on it.

Allah knows best.

-islamweb.net.