In the name of Allah, Most Compassionate, Most Merciful,
Primarily, there are two situations here and depending on which
situation we have, the ruling of divorce will differ. The husband's
statement can be perceived in two ways. It can be considered as one
sentence, in that the husband did not intend two separate
pronouncements; rather, he was merely emphasising (ta'keed) the
divorce. The second situation is where the husband intended a second
pronouncement of divorce with the word "Talaq" and he was not merely
confirming the divorce. In other words, he was not merely emphasising
the divorce, but was actually thinking that this is a second statement
of divorce that he is directing to his wife.
1) In the first situation, where the husband did not intend two
separate pronouncements, one irrevocable divorce (talaq ba'in) has come
into effect. The husband's statement "I am separating you from me" is
an allusive (kinaya) statement that normally results in an irrevocable
divorce if the husband has an intention to divorce. Here, the husband
did have the intention to divorce his wife, as he clearly said "Talaq"
directly after it. Even if the husband did not intend divorce with this
(first) statement, the second statement "Talaq" is a clear statement of
divorce which normally results in a revocable divorce with or without
an intention. However, if this clear statement of divorce is joined
with other words of emphasis, then it will result in an irrevocable
divorce. Thus the statement "Talaq" has been emphasised with the
statement "I am separating you from me" hence it will result in one
irrevocable divorce and not a revocable one. (See: Radd al-Muhtar,
3/250)
As such, one irrevocable divorce has been effected and the wife must
observe the waiting period (idda) immediately. If the couple wish to
reconcile, they may do so by having a new Nikah contracted within the
waiting period or after it. The husband, however, must remember that in
future he will only possess two more divorces. If he was to ever
divorce his wife two more times, the marriage will be completely over.
2) The second situation is where the Husband meant to pronounce two
separate statements of divorce. In this case, two irrevocable (ba'in)
divorces will be effected, with the husband only possessing one more
divorce in the future (if the couple were to reconcile). Here, the
statement "I am separating you from me" is an allusive statement of
divorce which results in an irrevocable divorce. Thereafter, the
husband pronounced a clear word of divorce, which normally results in a
revocable divorce.
The renowned Hanafi jurist, Imam Haskafi (Allah have mercy on him)
mentions four possible scenarios with regards to following up a divorce
with another divorce. He states:
"A clear (sarih) divorce follows a clear (sarih) divorce and an
irrevocable (ba'in) divorce, with the condition of (this being in) the
waiting period. And an irrevocable divorce (ba'in) follows a clear
(sarih) divorce....... And an irrevocable (ba'in) divorce cannot follow
another irrevocable (ba'in) divorce." (See: Radd al-Muhtar ala al-Dur
al-Mukhtar, 3/306-308)
The meaning of the above text is that there are four scenarios with regards to following up a divorce with another divorce:
a) sarih + sarih
b) ba'in + sarih
c) sarih + ba'in
d) ba'in + ba'in
(Sarih means divorce in clear terms which normally results in a
revocable/raj'i divorce, and ba'in means an irrevocable divorce).
a) Following up a clear (sarih) divorce with another clear (sarih) divorce (as-sarih yalhaq as-sarih):
A clear divorce is where the husband pronounces divorce in clear
terms. This type of divorce normally results in a revocable (raj'i)
divorce and is effected even without the intention of divorce. As such,
if a husband said to his wife: "I divorce you, I divorce you" then two
revocable divorces will come into effect. The husband may take his wife
back (raj'a) provided he does so within the waiting period (idda) of
the woman. If the waiting period is over, they may still get back
together but now a new marriage contract will be needed.
The meaning of "with the condition of (this being in) the waiting
period" in the above text is that in order for the second divorce to be
valid, it must be pronounced within the waiting period. As such, if a
man said to his wife: "I divorce you" and then when her waiting period
was over, he again made the same statement, then obviously it will be
of no consequence, as she is no longer his wife. It is as though he is
pronouncing divorce to a complete stranger.
b) Following up an irrevocable (ba'in) divorce with a clear (sarih) divorce (as-sarih yalhaq al-ba'in):
Irrevocable divorce (talaq ba'in) is effected when the husband
clearly stipulates that he is issuing his wife an irrevocable divorce,
or when he divorces his wife using allusive words with an intention to
divorce her. As such, if a husband divorced his wife irrevocably and
then followed it up with a clear divorce, for example he said: "I
divorce you irrevocably, I divorce you" or he said: "I am leaving you,
I divorce you" then in this case both divorces will come into effect.
It should be noted here that the first divorce is irrevocable, hence
the marriage is considered to be somewhat over (unlike a revocable
divorce). Despite this, when the second divorce is pronounced in clear
terms, it will come into effect even if it was pronounced after an
irrevocable divorce.
Imam Ibn Abidin (Allah have mercy on him) mentions another point of
interest here. He states that if a divorce in clear terms (which
normally results in a revocable divorce) is pronounced after an
irrevocable divorce, the second clear divorce will also be considered
irrevocable. The reason being is that the second divorce in clear terms
has been preceded by an irrevocable divorce and that first irrevocable
divorce will prevent the second clear divorce from being revocable. As
such, two divorces will come into effect and both will be considered
irrevocable. If the couple wish to reconcile, a new marriage contract
will be necessary within or after the waiting period. (Radd al-Muhtar,
3/306)
c) Following up a clear (sarih) divorce with an irrevocable (ba'in) divorce (al-ba'in yalhaq as-sarih):
The third scenario is where one first pronounces clear (revocable)
divorce and then the irrevocable divorce. For example, the husband
says: "I divorce you, I divorce you irrevocably" or "I divorce you, I
am leaving you". In this case, a revocable divorce took effect with the
first pronouncement, and thereafter an irrevocable divorce. Hence, now
two divorces have come into effect, with the second divorce being an
irrevocable one, thus making a new marriage contract necessary if the
couple desired to remain together.
d) Following up an irrevocable (ba'in) divorce with another irrevocable (ba'in) divorce (al-ba'in la yalhaq al-ba'in):
For example the husband says to his wife: "I am leaving you, I am
leaving you" (intending divorce with both statements) or he said: "I
divorce you irrevocably, I divorce you irrevocably". In this case, only
the first divorce will count and the second will be considered futile.
Regardless of how many irrevocable divorces a man pronounces, only the
first divorce is effected. The reason being is that the first divorce
is irrevocable; hence, the marriage bond between the husband and wife
has ended. As such, the second irrevocable divorce will not be able to
attach itself on a relationship that has already come to an end.
(Culled from Ibn Abidin's Radd al-Muhtar, 3/306-309)
In light of this explanation on the four possible scenarios, two
irrevocable divorces have come into effect. You state that the husband
said: "I am separating you from me, Talaq" which is from the second
scenario, in that he followed up an irrevocable (ba'in) divorce with a
clear (sarih) divorce. And as mentioned, in such cases two divorces
come into effect and both of them are considered irrevocable.
Therefore, if the couple wish to reconcile, a new marriage will have to
be contracted and the husband will only have one more divorce in his
possession for the future.
To sum up, primarily, there are two situations here. If the husband
intended his statement "I am separating you from me, Talaq" to be one
statement of divorce, then one irrevocable (ba'in) divorce will come
into effect. In this case, a new Nikah will have to be contracted if
the couple wish to reconcile. If the husband intended two separate
statements of divorce, then two irrevocable divorces will be effected,
with only one more divorce remaining in the future, if the couple were
to reconcile.
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK
www.daruliftaa.com