Private Law
seyede motahare hosseyni; Leila sadat Asadi; seyed mohsen fattahi
Abstract
There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where ...
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There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where the divorce decree is issued and "the two-step theory of such divorce process". The different effects resulting from the acceptance of each of these approaches on the rights of each couples in the judicial process and implementing stage of divorce, confirm the necessity of investigating the issue.This descriptive-analytical study was conducted by examining the advisory theories of the Judiciary Law Department and using the votes issued by the family courts and issues discussed in the judicial sessions; to answer this main question: "what is the divorce type on behalf of the wife as husband's advocacy and its effects". The results revealed that, Article26 of the aforementioned law, in terms of determining the divorce type (on husband's behalf) is ambiguous and therefore suggests a revised text. In addition it considers the best interpretation of the above article in being two-stage of wife divorce on husband's behalf: firstly, verification lawsuit for the power of attorney for the wife, and then a request to issue a certificate of compromise impossibility in the uncontested divorce form. This theory, which is more consistent with the provisions of Article 26, solves the problems faced by the other two theories, especially in terms of closed matters' validity in case of not executing the divorce decree within the deadline stipulated in Article34 of the Family Protection Law.
Family Law
ZAHRA REZAPOUR; mohammad farajiha; mohammad roshan
Abstract
According to empirical studies, the process of investigation and traditional and retributirism magisterial decisions have not been effective in finding the appropriate answer and reducing the inflation of domestic violence cases despite its high costs; Since the point of view of the above-mentioned criminal ...
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According to empirical studies, the process of investigation and traditional and retributirism magisterial decisions have not been effective in finding the appropriate answer and reducing the inflation of domestic violence cases despite its high costs; Since the point of view of the above-mentioned criminal justice system has been only to deal with the substantive issues of the lawsuits and apply the rule to them. Attempts to solve this problem and apply alternative views had to the proposal of a new approach under the title of problem solving with components such as rethinking the role of the judge in many countries under the common law system. The current research deals with two main issues through the aforementioned approach: First, what is the evolution of the judge's role in problem solving approach? And second, to what extent have the effects of this evolution been recognized in Iran's legal system? To answer them, the method of content analysis of legal documents and documents, including judicial cases (15 samples) in the summer of 1401, was used in the Justice Complex of Razavi Khorasan province. Also13 hearings were also observed and investigate the attitude of criminal justice authorities, 30 judicial activists and lawyers and a number of victims interviewed using the in-depth interview method. The findings of the research showed that in the approach of problem solving, in the criminal justice system of Iran, the judicial procedure of some judges, although unknowingly and unsystematically, has the characteristics of problem solving with different degrees
Family Law
Touba Shakeri; Zahra Babazadeh
Abstract
The sexual abuse of the wife by the husband is not explicitly recognized in the Iranian legal system. However, in light of some of the provisions in the family law, one can find the grounds to consider this issue. Due to the legislator's silence in defining conjugal obedience, separating general and ...
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The sexual abuse of the wife by the husband is not explicitly recognized in the Iranian legal system. However, in light of some of the provisions in the family law, one can find the grounds to consider this issue. Due to the legislator's silence in defining conjugal obedience, separating general and specific obedience and determining the limits and scope of each, identification and recognition of the sexual rights of couples in family lawsuits face challenges. This study answers the questions that, given the sexual abuse by the husband, what legislative mechanism is provided to support the wife in the Iranian legal system and how family court judges interpret these laws. This paper, using a qualitative approach and case study methodology, after reviewing jurisprudential texts and reviewing legal laws investigates the judicial procedure of family courts in Tehran province in issuing rulings requiring obedience or judicial divorce due to sexual harassment of the wife by analyzing the content of cases, interviewing judges and women applicants of divorce. Findings show that judges’ interpretations of the instances of sexual misconduct are varied and verification of the wife's sexual hardship, in addition to the difficulty of proof, lacks clear criteria and is based on judges' personal interpretations of the scope of conjugal obedience. Therefore, there seems to be a need to include the conventional sexual rights of couples in the family laws and establish a unified procedure in issuing a sentence of non-obligation to obey and verification of the wife's hardship in cases of sexual abuse by the husband.
Family Law
mohsen safari; Zahra Mashayekhi
Abstract
The family is a social institution and a natural unit that we have witnessed significant changes in its definition, structure and function in recent decades. In many legal systems, the family is an ideological institution whose laws are enacted in the light of religious rulings; Laws that are typically ...
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The family is a social institution and a natural unit that we have witnessed significant changes in its definition, structure and function in recent decades. In many legal systems, the family is an ideological institution whose laws are enacted in the light of religious rulings; Laws that are typically authoritarian and the will of individuals to determine their relationships is limited and partial. However, because of the dominance of such rules, one should not ignore the individual areas of human life in the institution of the family and prescribe the violation of their most fundamental rights and freedoms. Fundamentalism is a phenomenon that seeks to protect the fundamental rights and freedoms of individuals in society at the judicial level, and the fundamentalization of family rights seeks to amend strict laws whose absolute application will result in nothing but crisis and turmoil in the family institution. It also violates the fundamental rights and freedoms of family members, indiscriminately and extensively. In this research, in a descriptive-analytical method, by reviewing and criticizing the views of proponents and opponents of constitutionalization of family rights and by presenting criteria in line with the Iranian legal system, we have designed and explained the theory of conditional constitutionality. Prevent the fundamental rights of family members and the fundamental values of the family institution, and shine a light on the minds and consciences of our intellectual judges.
Family Law
Maryam Sadat Mohaghegh Damad
Abstract
Abstract: The hadith “ Al-Talaq bi-ya-di man ʿakhadha bi-al saḳ)”, renown as “ Hadith Nabawi”(that contains the words that Prophet Muhammad spoke himself), “Jurisprudential Criterion” or “ Jurisprudential Rule” is one of the most important reasons cited ...
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Abstract: The hadith “ Al-Talaq bi-ya-di man ʿakhadha bi-al saḳ)”, renown as “ Hadith Nabawi”(that contains the words that Prophet Muhammad spoke himself), “Jurisprudential Criterion” or “ Jurisprudential Rule” is one of the most important reasons cited by those scholars who believe that the right to terminate the marriage contract is exclusively granted to men. Have been considerably influenced by Islamic rules and Shiʿa scholars, Iranian case law also reflects the abovementioned approach on divorce so that a number of supreme court decisions refer to “al-Talaq”, as an authority that attributes the right of ending marriage contract entirely to the husbands. Now, given the significance of “al-Talaq”, main questions are that; how compelling is the narrative of aforementioned hadith? is its evidential and substantive background sufficiently strong to make it as a ruling authority? Studying valuable amount of historical resources shows that for pioneering Shiʿa jurists who had lived immediately after the Islamic legislation era, the right to terminate marriage contract was not an exclusive power for husbands. Additionally, revising “al-Talaq” by means of chronology, Hadithology, semantics and jurisprudential principles demonstrate that “al-Talaq” is based on insufficient and weak evidence. Also, the context of this hadith cannot be adduced as an authority for men’s exclusive right of divorce in Iranian and Islamic courts.
Family Law
kadijeh mozafari; Zeinab Hoseini
Abstract
Husband who do not perform certain duties such as payment or sexual relations, cause marital maladjustment and ultimately causes the wife to be dammaged. Despite the attention to this subject in Qur'an, traditions and Shia jurisprudence, it is not well known in Iran's laws and jurisprudence.when a husband ...
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Husband who do not perform certain duties such as payment or sexual relations, cause marital maladjustment and ultimately causes the wife to be dammaged. Despite the attention to this subject in Qur'an, traditions and Shia jurisprudence, it is not well known in Iran's laws and jurisprudence.when a husband does not perform his duties while he has ability to do so, there is a disobedience. Refuse to pay or to have sex, abusing sexuality, being indifferent etctra are examples of disobedience. In current laws financial obligations have been guaranteed by effective performance and even punishment, but there is no guarantee for effective implementation of non-financial obligations such as having sex. On the other hand, on the basis of the current rules, it can be considered that the husband's disobedience leads to distress and constriction of his wife. And on the other hand, this is the violation of the general obligation of Good companionship, so judges for Preventing uncertainty and suspension of wife, can issue divorce, even without proof the distress and constriction. It is also possible to take a more fundamental step by identifying the disobedience in Iranian law, specifying the examples and guaranteeing its implementation.
Private Law
Abbas Mirshekari; Nafiseh Maleki; Elham Habibzadeh
Abstract
There is no doubt that mother or father, who is not awarded to have the custody of the child by the court, has visitation right, as Article 29 of the Family Support Act (passed in 1391) and other related acts including Article 1174 of the Civil Code clearly recognize this right for them. However, Article ...
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There is no doubt that mother or father, who is not awarded to have the custody of the child by the court, has visitation right, as Article 29 of the Family Support Act (passed in 1391) and other related acts including Article 1174 of the Civil Code clearly recognize this right for them. However, Article 29 of the mentioned law claims that in addition to parents, relatives are rightful to visit the child. According to the law, visitation right is mentioned in divorcement chapter and therefore this question arises that their visitation right exists only when parents are legally divorced or they also have the right when parents live apart or even when the child is under custody of both parents. To answer this question, this article is pursuing to prove that relatives who are in blood relation with the child (known as relative relatives) do not have absolute and independent visitation right; In fact, their right is conditional upon death or absence of parents, unless emotional attachment and child's interest and prudence exceptionally necessitates visitation to relatives.
Family Law
hadi VAHIDI FERDOUSI; ZAKIE NAEEMI
Abstract
The effectiveness of the family law, depends on its efficiency in the society. Any incompatibility of the social and legal system governing the family, will prevent this from being carried out. This damage, which can be observed right now in our legal system, is due to factors that wrong way of enacting ...
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The effectiveness of the family law, depends on its efficiency in the society. Any incompatibility of the social and legal system governing the family, will prevent this from being carried out. This damage, which can be observed right now in our legal system, is due to factors that wrong way of enacting the law is the main element among them. It seems that attention to reality and the study of social studies in a scientific manner, can increase the effectiveness of family law and bring it closer to its main goal. Sociological and historical studies can be leading in this regard. For this reason, we have first provided the historical data needed for this analysis by stating the legislative process in the field of family law, from the constitutional period to the present. The main purpose of this article is to try to provide a solution to increase the effectiveness of the law, and in view of the historical experiences described, we will briefly introduce and propose the "empirical study of law" for this purpose.
