Authorizing wife to divorce herself does not cancel husband's right to divorce her

Question

Assalaamualaikum. We got married in the presence of two witnesses only, without a legal guardian and judge. The ceremony was done in the presence of witnesses along with the decided bridal gift. After some months, my husband gave me a first divorce in a message, but we later came back to each other. Soon after that, my husband started saying that from then on, he had given the right of divorce to me and that I would be the one who would have the right to issue a divorce. I always maintained that I did not have that right. Now, after nearly one-and-a-half years, we had a terrible fight, and I asked my husband to divorce me. As usual, he said that I had the right to give it if I wanted it and that I am free to pronounce it. I again said that I did not have that right and that only he can give me a divorce and that he has to free me. We had arguments, which resulted in me saying, "Fine, I have the right, so I am giving you Talaaq (divorce)." We again returned to each other a month later. Fighting on the same issue, my husband said that he was giving me Talaaq while we were on the phone. Later, some hours ago, he called me to make me understand that the divorce did not take place because he does not have the right to do it, so instead I have to say it. I told him that I do not have the right and that he is the one who has it and that he had pronounced it. He maintained that he does not have the right to pronounce it and that I do. I again said that I do not have the right to divorce him but that for him I was saying that I was divorcing him but that I nevertheless did not have that right. We have both made this situation very critical and do not know what to do; we need your guidance. Any advice in this regard will be appreciated.

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 is His slave and Messenger.

The valid marriage contract has conditions that must be fulfilled for it to be valid Among the most important of these conditions are the Wali (bride's guardian) and the two witnesses. The most preponderant opinion of the scholars is that if the marriage was concluded without the Wali, then it is void. This is the view of the majority of the scholars, contrary to the view of Abu Haneefah. Hence, if this marriage contract was conducted according to the School of Abu Haneefah or a Muslim judge ruled that it is valid, then it is effective (i.e. valid). 

On the other hand, the husband is entitled to put the matter of divorce in the hands of his wife, and if she chooses divorce, then it becomes effective. But the saying of the wife, "I am giving you Talaaq," in the present tense, is not an explicit wording of divorce; rather, it is one of its metaphors, and divorce is not effective except accompanied by its intention or if this is the customary wording of (immediate) divorce where you live. 

Empowering the wife to divorce herself does not cancel the right of the husband to divorce her, meaning that he also has the right to divorce. 

Shaykh Sayyid Saabiq  said in Fiqh As-Sunnah, “Divorce is one of the rights of the husband; he may divorce his wife himself; he may empower her to divorce herself; and he may authorize someone else to do it. But empowering his wife or entrusting someone else to divorce her does not cancel his right and does not prevent him from using it whenever he wishes...”

Your husband's words, "I am giving you Talaaq" in the present tense is the same as your statement; i.e. it does not take effect unless accompanied by the intention or if this is the customary wording of divorce where you live. 

As you see, there is a difference of opinion about some of the issues that we have discussed, in addition to the need to know the intention that each of you had when saying the metaphor of divorce. Therefore, in our view, it is better to orally ask a trustworthy scholar in your country or take the matter to an Islamic court. 

Allah knows best. 

-islamweb.net