divorce

The right of divorce for women means that a woman can request a divorce without needing her husband's consent. Traditionally, in Iran, the right of divorce is held by men; however, women can acquire this right by obtaining a divorce proxy from their husbands. The impacts of a woman's right to divorce include legal and psychological aspects such as entitlement to dowry, the right to equal distribution of assets, personal independence, and protection of her financial rights when exercising this right.

This research employs a descriptive-analytical method and is based on library resources.

Ethical Considerations: 

All ethical principles in research have been adhered to in the preparation of this article.

When a woman exercises her right to divorce, she is entitled to receive her full dowry. Notably, the possession of the right to divorce does not necessarily lead to a sense of peace for many women, contrary to popular belief. In the end, this article discusses the implications of the condition of the right to divorce for women, including the necessity of obtaining a certificate of hardship, the need to consult family counseling offices, the right to legal representation, the possibility of receiving dowry and the right to equal asset distribution. Additionally, it explores the psychological effects of the right to divorce on women's inner thoughts and attitudes, their sense of peace or unrest, interactions with others, their professional environments, familial situations, and broader societal impacts.

The family is the most important social institution that plays a very important role in the growth and progress of the individual and society. Although Islam attaches great importance to the formation of a family and strives to preserve it, if it is not possible for the couple to continue living together, the dissolution of the marriage is necessary in Islam. One of the types of dissolution of the marriage contract is divorce. Divorce in jurisprudence and law is divided into two types: revocable divorce and irrevocable divorce. Revocable divorce has rules and regulations that Islam has specified and does not allow any rights of the parties to the contract, both men and women, in financial and non-financial matters, to be lost with this separation.

The research method in this research is descriptive-analytical.

Ethical Considerations:

 All ethical principles have been observed in the writing stages of this research.

The rights and obligations of the couple do not end after a revocable divorce. One of the rules and regulations of revocable divorce is the possibility of the man returning to his wife, and the wife must stay with the couple and the conditions for the man to return are provided. This type of divorce brings different rights for the couple, and the couple may not be aware of their rights for various reasons, and their lack of awareness may result in the loss of their rights. In Islamic law, the husband is responsible for the maintenance of the wife. Therefore, in this research, we will study psychology to examine the principles and examples of spousal maintenance during divorce.

According to these explanations, we will attempt to address the following questions: "What is the nature of the property halving condition in Iranian law?" "How is property divided under English law? the property division processes in Iranian and British law the same, or do they differ? This article employs a descriptive-analytical method to analyze the relevant literature. In Iranian law, asset division can be considered a secondary condition that complements the main contract, contingent upon the agreement of the parties involved. Therefore, it is an optional condition and does not necessarily apply to the relationships between the parties. In contrast, English law typically assumes that the division of property between spouses is equal, a legal presumption that judges enforce during divorce proceedings. This division is mandatory and is not contingent upon the parties' agreement. The property division clause in Iranian law is a provision included in the marriage contract, which is found in official marriage certificates. This clause aims to ensure financial support for women following a divorce. If the husband signs this clause at the time of the marriage contract, he is obligated to transfer half of the assets he acquired during the marriage to his wife upon separation and divorce. However, some scholars have questioned the validity of this clause, arguing that it is derived from English law and does not align with Iranian legal principles.
2. Study MethodThe present article has been written using a descriptive-analytical method to analyze the library studies.3. FindingsAsset division in Iranian law can be added as a secondary condition in addition to the main contract with the agreement of the parties. Therefore, it is an optional condition and does not necessarily exist in the relations of the parties. In English law, dividing the property of the spouses in half is a legal assumption that is implemented by the judges during divorce and is mandatory and has nothing to do with the agreement of the parties.

The main legal basis for granting legal agency in divorce is Article 1119 of the Civil Code. According to the mentioned Article, “the parties to the marriage contract can make any clause that is not contrary to the requirements of the said contract, in addition to the marriage contract or other necessary contracts, such as stipulating that whenever the husband takes another wife or disappears within a certain period or abandons almsgiving or attempts to harm the wife’s corporal integrity or misbehaves in such a way that the life intolerable, the wife should be entrusted with a lawyer and a lawyer who divorces herself after proving the fulfillment of the condition in the court and issuing the final verdict.This type of power of agency is realized if all the contract conditions are fulfilled and the court confirms it. Nowadays, many divorce lawsuits are done by the agency, either by using the marriage contract clauses or by a regulatory agency in notary public offices, usually known as an independent agency. Therefore, the presence of any ambiguity or disagreement in the nature and implementation of the law by lawyers and jurists will directly impact the parties’ rights and how the law is implemented, even making the agency abort. On the one hand, the challenges are related to the nature of the agency and its effects, and on the other hand, filing a lawsuit and leading to a verdict by using an agency in divorce. One of the conceptual challenges is the wife’s right to divorce. Does granting the wife the right to divorce mean granting agency to the wife in divorce?The other challenge is the husband’s motivation to grant the wife agency. Sometimes, in his defense, the husband states that his motivation for granting agency was “encouraging the wife” to “continue life together” and not that the wife proceeds with divorce. In this way, this claim may take on a legal aspect that the courts consider as part of the will of the couple in granting agency. In such a case, i.e., the non-continuity of the shared life, is the legal agency also ruled out?The third challenge is the non-granting of the power of attorney in divorce. Does a divorce lawyer have all the powers related to divorce, such as accepting a dowry? Another challenge is if the lawyer does not respect the couple’s interests in divorce, what measures can the couple take? Apart from formal challenges and the challenge of the lack of urgency in applying the wife’s conditional power of attorney after the fulfillment of the conditions, others, such as the challenge of the validity of the wife’s power of attorney in the case of the husband’s appeal after the divorce, the challenge of the husband’s intervention in the legal process, the request for divorce with proof of hardship and embarrassment and the condition of power of attorney, the challenge of the court in adopting the type of final decision can be mentioned. In this research, the challenges have been examined, and methods and arguments have been made to adjust and combine the substantive and formal rules of agency and proceedings, providing the basis of rationality and purposefulness in these claims. The court’s action in preventing the husband’s involvement in the divorce makes such an agency similar to granting the right of agency to the wife in divorce, which is against the traditional rules of representation and the foundations of our legal system. It seems that the judicial procedure regarding the agency in divorce establishes a different type of agency. The legislator must understand the era’s requirements, make the necessary legislation to maintain harmony, and clarify the person’s duty in referring to the courts in applying for agency in divorce.

The prevalence of modern culture in the world has led to a positive attitude to divorce, such that young couples deem the divorce-based married life as a lifestyle. As this approach is accepted in Islamic societies, too, the divorce rate is constantly increasing. Nonetheless, the noble Qur’ān has legislated divorce not as a lifestyle but rather as a solution to a congested life. It has also organized all rules related to family in this regard. Accordingly, a positive view to divorce is different from the qur’ānic view. The identification of the viewpoint of the noble Qur’ān to the philosophy and station of divorce in human life is one of the essential insights that can lead to the betterment of familial life.The study at hand intends to respond to the question “In the qur’ānic view, what is the philosophy behind legislating divorce and what is the station of divorce in the familial system of life?” Adopting a descriptive-analytical approach and relying on exegetic resources, this study analyzes divorce in modern and Islamic thought systems. The results show that the noble Qur’ān bases human society’s life on marriage, sanctifies coupleness, facilitates marriage, and reprimands and opposes easy divorce to show that divorce is only a solution for emergencies in life.

Nowadays divorce is in today`s societies, specifically in western countries, losing the negative viewpoint portraying as the dismantling force of family bonds, as it once had to face, and are showing tendency towards contractual dissolution of the said bonds. Parties tend to peacefully and as fast as possibly in reach, leave behind this period of their social and private lives and move forward. With the flow of multiple reforms through the years dating back to 2016, legislations to this day have tried to answer to some of the concerns regarding judicial divorce, elimination of the judge`s involvement in divorce procedures, stablishing divorce forms like divorce sans judge or divorce without judge, contractual interpretation of divorces etc. this article while glancing over these reforms and professing the historical events leading to and resulting from the said changes, craves for the weak points, side-effects, destructive aspects etc. to be highlighted and by specifying the strengths and offering comparative studies tries to answer to the all-important question of “would these reforms even dare to influence the current Iranian legal system in regards to divorce procedures in the right way? Considering the ever-rising rate of divorces (around the globe as in Iran), the destructive lingering effects of procedural delays, proper adoption of said reforms in order to put effective and influential suggestions forward, deems like never before necessary; Of course, respectful and true to the cultural, idealistic, licit and legitimate framework of the set boundaries of Iranian legal system.

The present study aims at examining the family laws in the field of judicial divorce, especially the one based on 'osr wa haraj principle in order to clarify its flaws and shortcomings. Most of the cases that are mentioned in the note of Article 1130 of the Civil Code as examples of 'osr wa haraj, besides the fact that they do not reach the level of such 'osr wa haraj making the continuation of life difficult for women, they cannot be considered as examples of 'osr wa haraj; It may be placed under another title such as mo'asherat bi ma'rouf. Also, mentioning these cases as examples of 'osr wa haraj is against the principle of the negation of 'osr wa haraj, and thus causes an increase in the number of divorces in the society. In family life, the husband must either fulfill all his rights and duties well or divorce the wife. A husband's inappropriate treatment of his wife and failure to fulfill his duties regarding her on the one hand, and not divorcing the wife on the other hand, is injustice against the wife. In this case, the ruler or judge issues a decree on the divorce of the woman on the basis of justice and the need to remove oppression and due to establishing justice in the society.

The legitimacy of Khul' divorce for the wife is an issue that has a precedent in Islamic jurisprudence and has been accepted in some Muslim jurisdictions based on some circumstances. Accepting this right in Iran law can prevent abuse of the right to divorce and the suspension of marriage. In this research, based on a library effort the possibility and requirements of such a divorce has been examined from a comparative point of view. The findings of the research indicate that the wife's strong hatred form her husband is the base of conferring a thing to him and disobeying from him due to the mental and emotional pressures that applied over her. In this assumption, obligating wife to this marriage despite her inner desire is considered a harm to her. In this regard, we cannot confer the right of divorce to husband as a special right for man so that even in cases which the wife is afraid of falling into sin, which that, leds her to a wandering situation. In such a situation, the law of many Islamic jurisdictions gives the wife a right to divorce without the husband's consent.the law of many Islamic jurisdictions gives the wife a right to divorce without the husband's consent.

Child custody is a significant issue faced by families after divorce in all legal systems. In Iranian law, custody refers to the keeping, care, and regulation of a child's relationships with others, while in Canadian and English law, it encompasses all the rights, duties, powers, responsibilities, and authorities that parents have concerning their child and their property. The crucial question to be addressed is how divorce affects child custody according to the legal systems of Iran, England, and Canada. It appears that while divorce itself does not have a direct impact on the priority of one parent over the other in terms of child custody in Iranian law, the actual determination of custody between the father and mother becomes evident after divorce due to their pre-divorce cohabitation. In Canadian and English law, explicit gender priority in post-divorce custody has largely subsided since the 1970s, with custody laws focusing on an independent assessment of the child's best interests and welfare, thus divorce does not affect the priority of one parent over the other regarding child custody. The research methodology employed in this study is descriptive-analytical and documentary, utilizing a library-based approach. After analyzing the content, the following conclusions were drawn: firstly, it should be noted that Canadian law is similar to English law in most related aspects. Secondly, custody in Iran only encompasses child custody, while in common law, it also includes guardianship and wardship. In common law, both parents can jointly seek custody, and there is no priority between them. The court decides which parent should be responsible for custody based on the child's best interests and welfare. Additionally, the mother's remarriage does not affect custody arrangements. However, in Iranian law, although custody remains with the mother until the child reaches the age of 7, guardianship remains with the father. Anything that endangers the child, such as insanity, leads to the deprivation of custody. Iranian legislation considers the mother's remarriage as a ground for depriving her of custody, but it does not consider the father's remarriage as an effective ground for deprivation. Nevertheless, according to Article 41 of the Law on Family Protection enacted in 2012, the court has the authority to modify or extend custody duration and the custodial parent based on the child's best interests.

Clarification in divorce is one of the conditions mentioned by famous Imami jurists regarding divorce, i.e. if divorce has been read with sarcastic words that are not specific to divorce, divorce will not take place and such a divorce is invalid, and it is believed that the reason for this is the hadiths and consensus of the sect. On the other hand, another group of jurists including Faiz Kashani consider the occurrence of divorce with non-specific words to be correct by referring to the hadiths and believe that whoever intends to divorce can do so with any words. The present research analyzes and reviews famous evidences by referring to jurisprudential sources and the  jurists’ opinions, and by preferring the non-famous point of view, it comes to the conclusion that the opinion of the non-famous group is more correct, because it seems that it does not matter how divorce is expressed, but what it matters is the intention of divorce, and if the couple expresses the intention of divorce with indirect and sarcastic words like I hate you, or the authority is in your hands, etc., while having the intention of divorce, the divorce will take place.

The certificate of incompatibility is a title that the legislator has established for the decisions of the family court in the matter of divorce. Since there is no such title in the traditional division of court opinions, therefore, it is important to examine its nature and determine its position among the judicial decisions of the family court. The present article has studied the certificate of incompatibility in Iran's legal system with a library method and in a descriptive-analytical way, including its background, nature, cases of issuance and implementation, and finally reached the conclusion that in explaining the nature of the certificate of incompatibility It is necessary to distinguish between consensual divorce and divorce at the request of the husband. In consensual divorce, the nature of this certificate is merely the reflection of the couple's lack of compromise and their agreement, in this case, the court does not make any judgment. However, in divorce at the request of the husband, if the man's absolute authority in the divorce is accepted, the family court proceedings will be limited to hearing his opinion, referring the couple to arbitration and determining the wife's financial rights. In this type of proceedings, Judge will have a passive role and as a result, the certificate of incompatibility cannot be considered as a "verdict". However, in case of acceptance of the adjustment of the husband's right to divorce, the type of proceedings of the family court, similar to the case of the wife's divorce case. In this case, the nature of the decision of the family court, which originates from an arbitration matter, is not a mere certificate, but has the characteristics of a judgment.

Domestic violence, as the most common type of violence against women, is any type of gender-based violence that leads to physical, sexual, or psychological harm to women, or increases the likelihood of its occurrence in women, or actions that are painful for women, or to the forced deprivation of individual freedoms or social leads. Although this type of violence usually occurs in the privacy of the family; But they affect women's lives in all public and social fields. Therefore, it leads to destructive consequences within the family, society and hinders economic-social progress. In this article, the criminological investigation of domestic violence and its causes and factors is discussed; We also aim to find the connection between this issue and the phenomenon of divorce through a field investigation and reach practical solutions on the issue and provide executive suggestions to the legislators and the judicial system to implement it. The method of collecting information in this thesis is library method and field study is also used through questionnaire tool. The statistical population of this study is women who have been subjected to violence by their husbands and intend to separate and divorce by filing a case in the family court of Tehran.The result obtained from the survey of the questionnaire is that the factors that we investigated were all effective in the issue of violence and ultimately led to divorce in cases where some factors were more related to divorce and were discussed in detail. Also, at the end, some suggestions are mentioned.

The rules of divorce are among the most important rules, which are related to public order. For this reason, the rule of private will in divorce is limited. According to jurisprudence, the husband can divorce the wife in person or by proxy at any time. However, in Article 1133 of the Civil Code Amendment, this path was amended and the man has the right to divorce his wife only by going to court and observing the provisions of the law. Divorce is a ceremonial rite; That is, in addition to the will and ability of the couple, there must be rituals such as divorce, chastity, and the presence of two just male witnesses. But public order and social interests required that, in addition to substantive formalities, the legislature establish formal formalities such as going to court, a certificate of the impossibility of conciliation or divorce decree, and the registration of divorce. The guarantee of non-observance of the essential formalities of divorce is void. But the legislature is silent on guaranteeing the civil performance of formalities. Some people believe that because divorce is done by the Shari'a rules, non-observance of formalities (formalities) does not invalidate it and only guarantees criminal execution. Others believe that the rules of dissolution of marriage are among the laws of public order, the non-observance of which invalidates the divorce. In general, given that public order is an exception in private law, the legislator's silence can not be considered a breach of divorce without going to court or divorce without registration; Because the principle is based on correctness and non-invalidity. The effect of establishing these formalities, as stated in the court rulings, is that litigation proving a normal divorce cannot be heard; Because divorce has to go through a specific legal process.

AbstractMarriage is one of the most common contracts in the society, during which a bond of marriage is formed between two people of two different sexes. One of the most important goals of the marriage contract is the creation of a bond of marriage and cooperation and empathy in building a common life between the couple. One of the important important issues that arise as a result of marriage is the couple's birth and having children. This issue is so important that it is mentioned in the text of the official marriage document as a condition of the contract.In paragraph B of the marriage document, there are twelve cases that, if they are fulfilled, the wife will be a lawyer to divorce herself on behalf of the husband. One of these cases is the condition of the woman's fertilization in such a way that if, after five years of living together, the man is unable to impregnate his wife due to infertility or other physical diseases, the wife will be his lawyer to prove the fulfillment of the condition in the court. Make yourself absolute.Today, with the emergence and prevalence of using modern medical methods in the treatment of infertility, the current research deals with the issue of whether a husband makes his wife pregnant by using these modern methods of fertilization, or the wife's ability to conceive using infertility treatment methods. , the condition mentioned in the 10th item of paragraph b of the official marriage document remains valid and this condition is canceled when the husband impregnates the wife in a natural way. Also, the divorce that is done by the spouse under this condition is retroactive, and its official registration, like the divorce that is originally given by the man, requires legal formalities

In consensual divorce, the husband and wife can agree on matters such as Mahriyeh, alimony, dowry and custody of children and then separate. In addition to the custody of the children, they must also agree on the meeting of the children with their parents after the divorce. In the evaluation of feasibility of agreeing on the effects and rulings of marriage dissolution, the main question is whether what is agreed upon is a right or a ruling or both? In fact, there are cases where the ruling or their rightness is doubtful. If the example in question is a ruling, it is not possible to agree against it, but if it is a right, it is possible to agree against it, and if the right is shared by both parties, the prevailing aspect of the ruling or the right must be clarified

This paper addresses the jurisprudential and legal study on marriage and divorce laws in the family protection law approved in 2012, with an emphasis on criminal aspects. According to jurisprudential and legal texts, divorce is considered to be a husband right and this has not changed in the family protection law but the formal conditions of divorce have changed. Based on Article 2 of the law, the family court is formed with the presence of a female consultant judge. In Article 16 the issue of family counseling alongside the family courts is mentioned and the use of psychiatrists, psychologists, and social workers alongside the judicial staff is considered necessary. Regarding the criminal aspects of marriage and divorce, the results show that according to the family protection law, failure to register a marriage is punishable by a fifth-degree fine or seventh-degree imprisonment, and failure to pay alimony and Mahr is also punishable by imprisonment.

According to Article 1130 of the Civil Code, the wife can force the husband to divorce by proving her distress in the courts. It is difficult to prove hardship and embarrassment in the courts, and in most cases, women resort to dowry to get out of their awkward situation. By examining the judicial procedure, it can be seen that the votes are scattered; In many cases, the unwritten rule of law, i.e., the meaning of giving dowry to the hardship and embarrassment of the wife, is revealed; In fact, dowry is considered one of the basic pillars of these lawsuits, in other cases, it is pointed out that it is related along with other aspects, and in some cases, a decision is issued according to the amount of dowry. What is important is that the Supreme Court's reference to dowry in divorce proceedings is due to hardship and embarrassment, and this has become a practice. This procedure aims to preserve the foundation of the family and reduce divorce or any other purpose. , there are consequences and social and cultural dimensions that are necessary to investigate. What is examined in this article is the analysis of the challenges of giving dowry in order to prove hardship and hardship and its solutions by criticizing the judgment issued by the court. This writing is descriptive-analytical And the collection of materials has been done in a library and digital way (using the opinions of the Judiciary Research Institute).

The aim of this study was to identify the effect of time and place on the allocation of divorce rights by descriptive-analytical method. The issue of equality between men and women in the right to dissolve marriage, as well as its conclusion in terms of Islamic jurisprudence and law, has long been raised among Muslim thinkers; But the objections and protests have never been as high as they are now, the emergence of civil movements and human rights activists and the increasing awareness of women about their rights have caused these issues to be raised more seriously and jurists and legislators of Islamic countries look at the issue from new horizons. The findings show: The study of the role of custom in allocating the right to divorce is one of the important issues in the field of jurisprudence dynamics and without a doubt the role of custom of time and place is one of the important issues in this regard. Assigning the right to divorce to a man is one of the matters that is not explicitly mentioned in the Qur'an and does not deprive the wife of this right. A historical study of the status of women in the time of ignorance and the view that the Arabs had of women and the types of divorces in that day, by examining different temporal and spatial customs, customs and religious imitations, is ordered to divorce the wife

The obligation of the couple to divorce by the Islamic ruler is one of the important issues of Fiqh and law in the family, and it is significant because it can prevent the spouse from harm, hardships, and fears in the continuation of married life. Imamiyah and Sunni jurists generally agree upon the legality of the obligation of the couple to divorce, but there are some different viewpoints in the cases and conditions based on the foundation and arguments that have been considered for this issue. Shia jurists, based on the verses (of the Qur'an) and narratives, have considered the abandonment of sexual relationships, as well as the abandonment of giving alimony and misbehavior, to be valid requirements for a couple to divorce. However, the Hanafians, unlike other Sunnis, do not consider it permissible to oblige a couple to divorce due to disfavor or inability to pay alimony, and in the case of misbehavior, only Malikiya consider it obligatory to divorce. In the present study, while examining the arguments and cases of obligation of a couple to divorce in the fiqh of denominations, we came to the conclusion that the main basis of the legitimacy of requiring a couple to divorce is the need to negate the harm and fears of the wife. In other words, if the monopoly of the right to divorce, which is in the hands of the husband, causes loss and fears or hardships to the wife in her married life, after the request of the wife, the religious judge can issue a compulsory decree or proceed with divorce by proving the remarkable loss and harm. Based on this, it is possible to generalize cases requiring a couple to divorce to other cases of loss, including incurable infectious diseases of the husband.

Children's relationship with their relatives is influential in their personality development. Sometimes the communication of some children with their relatives faces obstacles due to reasons such as parents' divorce. According to the Imami jurists, if, for example, the custody of a child is entrusted to his father due to divorce, his mother also has the right to meet with him/her in order to preserve kinship ties. This right is also recognized in Article 1174 of the Civil Code. However, sometimes the person in charge of custody, contrary to the law, prevents the child under custody from meeting with persons who have the right to visit. Thus, he violates the right of the child and persons with visitation rights. A criminal reaction is one of the reactions of Iran's legal system in dealing with this act. Using the descriptive-analytical method and collecting data from library sources, the present research was carried out with the aim of explaining the criminal reaction of the Iranian legal system to the crime of preventing a child from meeting with persons who have the right to visit him/her. The results indicate that preventing a child from visiting has been subject to punishment since 1353. For the person who forbids the child's visit to be criminally prosecuted, the elements of this crime must be proven, which we have discussed in detail in this paper.