This matter is a branch stemming from the main difference of opinion: whether divorce occurs through writing or not.
I say, seeking Allah’s assistance:
Scholars have differed on this issue, and there are various opinions:
The first opinion:
The Dhahiri school of thought and an opinion of some Shafi’i scholars hold that divorce does not occur through writing. Rather, it occurs through explicit verbal expression by someone capable of expressing themselves. This is what Ibn Hazm transmitted in “Al-Muhalla,” stating that divorce occurs through clear verbal expression, in any language, even for those who do not speak Arabic well. It also occurs for a mute or deaf person through gestures that indicate intent.
The second opinion:
The consensus of the majority of jurists, including the Hanafi, Maliki, Shafi’i, and Hanbali schools, is that divorce can occur through writing, whether the person is present or absent. This falls under the category of implicit divorce. Divorce occurs through writing if the person intends divorce by it. However, divorce does not occur if the person did not intend divorce by the writing.
Imam Al-Kasani, in his book “Al-Bada’i’ from our important writings,” said: “If a person writes on paper, a tablet, the ground, or a wall in a clear manner, and he addresses it as a direct statement to his wife saying ‘You are divorced,’ then he is questioned about his intention. If he says, ‘I intended divorce by it,’ then divorce takes effect. But if he says, ‘I did not intend divorce by it,’ his statement is accepted in legal proceedings. This is because writing in this manner is akin to indirect expression. A person might write in this way intending divorce, or he might write to improve his handwriting, in which case it does not carry the intent of divorce unless accompanied by intention.”
The third opinion:
This is the opinion of some Shafi’i scholars, who hold that divorce through writing applies when the person is absent, not when they are present. This is in the realm of indirect expression, not explicit declaration.
The fourth opinion:
Divorce through writing occurs in all cases. This is the understanding drawn from the statements of some Hanafi scholars and others.
What we understand is that divorce through writing must involve one of two scenarios:
1- Intention.
2- Indication of the Situation.
Regarding intention, it is that the person intends to divorce their wife at the time of writing. Only the divorcing party can reveal this intention, and thus, the judgment returns to their statement. The statement becomes a legal ruling, and the matter is left to God’s jurisdiction, a matter of religious obligation.
As for indication by the situation, if there is a dispute between them and she says to him, “Divorce me,” and he writes on a piece of paper, “I have divorced you” or “You are divorced,” then the indication from the situation suggests that he is responding to her request for divorce.
Without intention or indication by the situation, divorce through writing does not occur, and this is due to the following reasons:
– Divorce through writing involves an element of possibility, and when there is a possibility involved, the principle of generality applies. Generality can only be lifted through intention or purpose.
– It is among the things that may involve forgery.
– It is among the things that could imply an intention to improve handwriting or to narrate from another source.
And Allah knows best.
Fatwa by Dr. Khālid Naṣr