Signing Divorce agreement in presence of two witnesses without verbally saying it? Is this divorce valid?

Question

Almost 6 months ago I asked for Khullah. Three months ago my husband signed the divorce papers without reading it through in presence of two witnesses.
One witness was present in the room and the other male witness was present via face-time (video call) clearly seeing and listening to the process. Upon my request my husband signed those papers which was prepared by me. It was one page agreement with title of “separation agreement” and stating that “we are both agreeing to enter in to divorce from this date”.

Before signing these papers my husband was well aware what the contact of this divorce agreement is even though the title says “separation agreement” but the body of agreement talks about divorce clearly.
My Husband now claim that he did not read it through before signing it and that he was forced by me to sign it. However, I would like to mention in those three months before signing this paper him and I had a lot of discussion on this matter in which he clearly knew my intentions and he also wanted to go with this divorce without any force but he always wanted me to take this initiation in front of everyone else.
Even before signing this agreement, my husband start telling his friends and family that we are divorced. Day before signing of this agreement he said he won’t say it verbally because it’s not necessary to say it when you know what you are signing.

After divorced signed, he left to live another state same day and after few days he realized he doesn't want to go with this divorce anymore so now he is insisting that he signed that divorce agreement without reading it and divorce is not valid because he did not say it verbally. I also want to mention that in past 5 years ago he said “I divorce you” twice out of fear and anger but I stopped him before he could say it third time. We stayed apart for a week and discussed and move back together since then he never said verbally these same words.
Now after this agreement signed by him he is reasoning that one of the witness was not present in person but via face-time (Video chat) and that he didn't verbally say that “I divorce you”.

My question is that it has been three and half months since we lived apart, in light of all this, is this divorce valid? Or does he has to say it verbally? Please advise in light of Islamic law.

Answer 1

In the name of God

About the present of two witnesses in the time of divorce there are the different perspectives in Islamic jurisprudence:

Shia scholars, Iben Abbas, O'mran Iben Hassin, Ibin Sirin, Saeed Ibn Mosayb and Ibn Hazm believe that the presence of two witnesses in the time of divorce is obligatory and saying the phrase of it (sigheh) is also obligatory and writing it or other thing is not correct and perfect. The evidence of shia is this verse:

« فَإذا بَلَغنَ أجَلَهُنَّ فَأمسِكُوهُنَّ بِمَعرُوفٍ أو فارقُوهُنَّ بِمَعروُفٍ وَ أشهَدوا ذوي عَدلٍ مِنكُم وَ أقيموا الشَهادَة للهِ ذَلِكُم يوعَظ بِهِ مَن كان يومنِ بِاللهِ وَ اليومَ الاخرَ وَ مَن يَتق اللهِ يجعل لَه مَخرِجاً »

And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah. That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah - He will make for him a way out [65:2]

Sunni scholars of four sections believe that the presence of two witnesses in the time of divorce is not obligatory but recommended and saying the phrase of it (sigheh) is also not obligatory and writing it or other thing is correct and perfect. But I think because of importance of divorce in the subject of Nasab (Linage) in Islamic rules and because of the important formula of with out damage (*

قاعده لاضرر ولاضرار في الاسلام

)* it is better to review of this perspective and correct it (1).

The other point is must mentioned is that in marriage the topic of presence of witnesses is completely diverse.It means that the Sunni scholars believe it is obligatory and Shia scholars believe that it is recommended.

reference: http://research.uok.ac.ir/_Pages/Research.aspx?ID=19211 (In Persian).

Answer 2

It seems he clearly knew what he was doing, and there is no difference between saying it verbally or writing it or signing a written text implying that or ....
That non present witness is also sure about this and would now sign the paper if he has the ability?? It seems yes

In my opinion it would be best to try to make these agreements officially valid too. I believe you could show the paper to any court and they will make it official and will leave no excuse for your ex-husband!

Answer 3

whether witnessing was valid probably depends on them, if the witnesses can approve their witnessing, that should work. probably they had seen what was written on the paper, and had seen that your husband had seen that.

but as i see your divorce process has another error: witnessing should happen after iddah, not at starting of iddah. but it is not late to fix it: you can invite witnesses now and if you and your husband say to them that iddah has passed, talaq will be valid.

the divorce phrases 5 years ago are not counted, because iddah had not passed that time. see my explanation at Just reciting "Talak" thrice commits divorce? . so, if you want, you can remarry, even if the divorce is valid.

as i know, khula should be done in court, and so, your divorce is not valid as khula.