In some situations a man divorces his wife to get some benefits and then reinstate their marriage. There are 2 views; the first considers such divorce effective. The other sees that it depends on man’s intention.

Sham Divorce

Similar Questions 

· Paper divorce.
   · Divorce to obtain nationality.
   · Divorce in order to marry another wife in a country that disallows polygamy.

The Issue

A man may divorce his wife on paper only, or he may obtain a divorce certificate in order to circumvent certain legal restrictions and gain some benefit that he cannot recieve if he is married. A man may admit that he has divorced his wife once, without her knowledge, and obtain the relevant certificate then reinstate the marriage. He may do so in order to get her a visa to a country which does not allow polygamy or to enable her to get a social benefit that is given to divorced women. In this last case, the couple both agree to this deception. They obtain the divorce certificate and when the social benefit has been approved they resume their marriage. Does such sham divorce count as a real divorce?

Ruling

The first view considers such divorce effective. This is the view of most contemporary scholars. They say that such a sham divorce is real and counts against the divorcing husband. The Assembly of Muslim Jurists of America endorsed this view in the final statement concluding its second convention held in Copenhagen in 2004. The statement said: ‘A sham divorce counts against the person resorting to it, since he has spoken the words or appointed someone else to do it on his behalf, whether he intends it or not. Writing is the most important means of documentation in our modern world. As far as religion is concerned, such a divorce is disregarded unless it is intended. This is the weightier scholarly view.

Evidence
 
This view is based on the hadith reported by Abu Hurayrah who

 This hadith is graded as ‘Good’. Al-Hasan al-Basri said: ‘In pre-Islamic days a man might divorce his wife and then he would say that it was all in jest. Or he might free a slave, but keep that slave saying that it was all a joke. To stop this, 

Malik quotes Sa'id ibn al-Musayyib as saying: ‘Three matters cannot be taken in jest: marriage, divorce and freeing slaves.’ Al-Hasan reports that Abu al-Darda’, a companion of the Prophet, said: ‘Three matters do not admit frivolity: marriage, divorce, and freeing slaves.’ (Related by Ibn Abi Shaybah in Al-Musannaf, and al-Albani says that its chain of transmission is reliable up to al-Hasan).

Ibn Taymiyyah said: The Legislator[1]forbids that God’s revelations should be taken in a frivolous manner and He has forbidden that His revelations, i.e. contracts, should be spoken in any way other than seriously intending their effects as defined in religion. Therefore, He has forbidden that they should be said in jest or under duress and He has forbidden the arrangement of a sham marriage to allow a divorcee to go back to her former husband. This is evidenced by His commandment: 

The second view is supported by some contemporary scholars who say that such a sham divorce does not take place. They argue that the man does not intend to divorce his wife. Things come into effect on the basis of intentions, not words. These scholars, however, do not reply to any of the bases supporting the first view which declares divorce effective whether said in earnest or in jest, provided that the clear words of divorce have been pronounced.

Sources

· The website of the Assembly of Muslim Jurists of America (AMJA): www.amjaonline.org.
   · www.yasaloonak.net
   · Islam Question and Answer: www.islamQA.info 
   · Ibn Taymiyyah, Al-Fatawa al-Kubra.