Giving divorce in language other than Arabic
16-5-2005 | IslamWeb
Question:
I found out that according to Maliki Madhab, one of the condition of divorce to be valid is the pronunciation of the words in Arabic. Link for subject matter is http://www.guidinghelper.com/qna/divorce.html
I asked my 2 Usthadh here in Jeddah (I'm a Muslim revert since 1997), but they said that they never come across such rule. In their view, any language is valid as long as the intention is divorce. They are both graduate in Makkah University and one of them is a PhD holder.
I divorced my wife for the third time using my own language in Filipino. I made Du'aa to Allaah to give me a way to get her back. Maybe this is the answer. In your opinion dear Shaykh, should the divorce words be pronounced in Arabic to be valid like the Shahada and Salah?
And in anticipation of your answer in the negative, am I allowed to follow the Maliki view because it suits my purpose?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger. We ask Allaah to exalt his mention as well as that of his family and all his companions.
The Maaliki jurists
stated that divorce in foreign languages [other than Arabic] is not effective if the husband does not understand its meaning [the word which means divorce], however, if he utters it in a foreign language while knowing its meaning, then it becomes effective.
Al-Kharaashi
from the Maaliki school, when interpreting the expression 'If he has been taught [to utter the word divorce] without understanding the meaning', written by Khaleel he said: 'This refers to a person who was taught to say the word divorce in a foreign language or in Arabic and then utters it without knowing what it means, so no Fatwa or court ruling would apply to him because he uttered the word without intention, and intention is one of the pillars of divorce. However, if he understands the meaning and utters the word divorce, he is bound by it [divorce takes effect].' So whoever utters an expression which means divorce or uses a metaphor to express this meaning in a foreign language [a language other than Arabic] while understanding the meaning of the words he utters, then divorce takes place according to the Maaliki School. Nonetheless, by uttering a metaphor, divorce does not take place unless the husband intends it. Also, divorce takes place if said in another language than Arabic according to the Hanafi, Shaafi'ee, and Hanbali schools. Therefore, if a husband says divorce to his wife in another language than Arabic, it takes effect according to the four schools.
Furthermore, it should be noted that if a husband divorces his wife a Bid'i divorce, i.e. when she is in menstruation or when she is pure but he had sexual intercourse with her, divorce takes effect. The evidence about this is what Al-Bukhari and Muslim reported about 'Abdullaah Ibn 'Umar 
. He divorced his wife while she was menstruating. So the Prophet 
ordered him to take her back (and keep her) until she is purified and she again enters the period of menstruation and she is again purified (after passing the period of menses), and then if he desires to divorce her before touching her (without having an intercourse with her), for that is the Iddah (the waiting period which Allaah has commanded women to observe when divorced). 'Abdullaah Ibn 'Umar said: "I took her back, and counted this pronouncement of divorce (as valid) with which I divorced her." [Al-Bukhari and Muslim]
The above is evidence that divorcing one's wife when in menstruation or when she is pure but one had sexual intercourse with her, takes effect and is counted as one divorce, but it is a Sunnah for whoever divorces his wife a Bid'i divorce to take her back if it is the first or second divorce. The majority of the scholars including the four Imaams and others, are of the view that Bid'i divorce takes effect. Therefore, we advise the questioner to refrain from thinking about this woman who does not obey him, causes many problems to him, refuses to wear Hijab and does not respect her husband. One should not feel sorry for divorcing such a wife and a Muslim who fears Allaah should not be attached to her. Besides, it should be noted that the questioner should not stay [overnight] with her in one house after having divorced her, as she is now a marriageable woman for him and the Prophet said: "Beware of entering upon marriageable women." [Al-Bukhari and Muslim] So we advise the questioner to hasten to get married with a religious woman with a good moral conduct in order to comfort his heart.
Allaah knows best.