Chapter: The Explicit Formulation of Divorce and Others

To summarize: divorce does not take effect except through an utterance. If one intends it in his heart without an utterance, it does not take effect, according to the opinion of the generality of the scholars, including ‘Ata’, Jabir ibn Zayd, Sa‘id ibn Jubayr, Yahya ibn Abi Kathir, al-Shafi‘i, and Ishaq. It was also narrated from al-Qasim, Salim, al-Hasan, and al-Sha‘bi. Al-Zuhri said: “If he resolves to do it, she is divorced.” Ibn Sirin said regarding one who divorces in his own mind: “Has God not known it?” Our evidence is the saying of the Prophet (peace be upon him): “Indeed, Allah has pardoned for my nation what their souls whisper to them, as long as they do not speak of it or act upon it.” Narrated by al-Nasa’i and al-Tirmidhi, who said: “This is a sahih (authentic) hadith.” Furthermore, it is a legal act that terminates ownership, so it does not materialize through intention alone, like selling or gifting. If he intends it in his heart and signals with his fingers, it also does not take effect, for the same reason we mentioned. Once it is established that the utterance is considered in this, the utterance is divided into explicit (sarih) and allusive (kinaya). The explicit form effects divorce without the need for intention, whereas the allusive form does not effect divorce until one intends it or performs an action that replaces the intention.

1257 - Issue: He said: (And if he says: "I have divorced you," or "I have separated from you," or "I have released you," the divorce becomes binding upon her.)

This implies that the explicit formulations of divorce are three terms: al-talaq (divorce), al-firaq (separation), and al-sarah (release), and their derivatives. This is the school of al-Shafi‘i. Abu ‘Abd Allah ibn Hamid went to the view that the explicit formulation of divorce is the word "talaq" alone and its derivatives, and nothing else. This is also the school of Abu Hanifah and Malik, except that Malik causes divorce to take effect by it even without intention, because in his view, the manifest allusions do not require intention. The argument for this view is that the terms "firaq" and "sarah" are frequently used for matters other than divorce, so they are not considered explicit in it, like the rest of its allusions.