جستجوی مقالات مرتبط با کلیدواژه « divorce » در نشریات گروه « فقه و حقوق »

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.

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.

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.

Among the rights of parents after divorce is the right to visit the child. Meeting with a child after divorce has many educational effects. The importance of these works, according to legal and jurisprudential principles, dictates that the person who has the custody of the child should provide the non-custodial party with the conditions to visit the child. The right to visit a child is one of the functions of custody in the famous language of jurists. the right is recognized in Article 1174 of the Civil Code and basically, it results from the application of rules such as(la Haraj va La Zarar). In such a way that disobeying this right, while harming the non-custodial party and being the guarantor of the obstruction, causes harm to the child in terms of violating special educational rights. This research is descriptive-analytical method and using library resources, following the jurisprudential analysis of the fundamentals of the necessity of fulfilling the right to visit a child during separation and preventing the implementation of this right and its educational effects such as: creating an emotional void in children, character impairment children, aggression, psychological insecurity of children, etc.

Although, Islamic jurisprudence scholars agree on the permissibility of divorce in Islam, they adopt different views on what type of Islamic ruling it should be assigned. A close analysis of the scholars’ stances reveals that their lack of consensus on this issue is mostly based on the popular hadith of “ابغض الحلال…” and other related hadiths. These hadiths mostly have issues with their chain of narrators. Moreover, they are paradoxical in nature due to considering divorce both ḥalāl and at the same time a much-hated act. Such a paradox defies logic. Still another point that defies logic and wisdom is to consider the same type of Islamic ruling for a divorce based on whims and a divorce which is well-justified in Islam. Needless to say that the first one lacks any Islamic justification. The present study, which adopts a descriptive-analytical approach, first scrutinizes the narrations related to divorce from both content and their chain of narrators’ points of view, and then concludes that in different situations, different types of Islamic rulings should be considered for divorce and it is too simplistic to consider it as makrũḥ or mubāḥ in all cases without taking their situational conditions into account.

In this article, we find that the relationship between couples and their rights in the family is based on a descriptive-analytical method and the adaptation of different Sunni jurisprudents to Islamic law, meaning that if the law or the rule of law leads. Damage to one of the couples' rights, the rule of harm flows, and the initial ruling is replaced by the other, such as the use of the divorced rule in cases of failure to do so. The monopoly of divorce in the iodine is deprived of him and forces the man to divorce, so the rule of family law in general largely prevents legal problems in the family and couple's rights.

One of the conditions that have become common in marriage today is the condition of the wife's representation in her divorce in some cases or even in absolute form. This condition has not been dealt with in the books of the past, although the validity of the wife's representation in divorce has a history and has had supporters and opponents. This paper, while looking for the history of this issue and its evolution, has criticized and examined the legitimacy of the mentioned condition and it shows that the incorrect justification of the views of jurists such as Sheikh Tusi, who considered the wife's power of representation in divorce to be invalid, provided the context for changing the course of the debate and neglecting the requirements of some narratives that absolutely introduce the condition of handing over the power of divorce to the wife by the husband as invalid. In addition, by clearing some ambiguities, and clarifying the difference between Towkil (make someone as representative) and Toliyat (to give someone authority), and responding to the notion of considering the meaning of narratives to titles such as Takhyeer and Toliyat, or the case of depriving the spouse of the right to divorce, it is proved that conditional representation at the time of necessary contract that the husband is not able to abolish is one of the clear examples of this condition being as invalid.

"Nahleh" is one of the financial rights that has been provided for the wife in Imami jurisprudence and subsequently in Iranian law. This institution was recognized by the legislator in 1992 in order to provide financial support to the wife and to achieve more justice for women in paragraph (b) of Note 6 of the Law on Amending Divorce Regulations, which can be defined in a short and useful definition. He considered the payment of a sum by the husband to the wife at the time of the divorce. In the latest developments in the field of family law, the legislature in 2012 repealed the law amending the provisions related to divorce. Nevertheless, the institution of "Nahleh" is considered an exception to this version, and as a result, the legislature has still upheld its provisions. Given these developments in the legislative process of this protectionist institution and the ambiguities and conflicts that have occurred in the concept of Nahla in the jurisprudence, the present article intends to respond to the contradictions in the jurisprudence and provide suggestions in this regard. The results of the research also show that Nahleh is a suitable institution for financial support of the wife; However, due to the uncertainty of its position and basis, especially in the judicial procedure, it does not have the necessary function as it should.

The background of the research on the ruler's divorce goes back to the jurisprudential book al-Moghnaah by Sheikh Mofid. Among the problems of today's society is the increase in the number of wives turning to the ruler for divorce petitions, a problem that is caused by the reduction of the wife's tolerance of the hardships of life. According to narrations, divorce is the most hated divine law and also a threat to the existence of the family. The theory of "Wife's Pervasive Distress and Constriction" aims to limit this social problem to specific examples that have not been considered in current research studies. From the point of view of jurisprudence and civil law, divorce is firstly and independently the right of the husband, but in cases where the wife is in severe distress and the husband refuses to have good company or divorce her, or divorce is impossible on his part, the ruler takes charge of the divorce. Therefore, the main question of our research is: What is the theory of "Wife's Pervasive Distress and Constriction" in the ruler's divorce from the point of view of jurisprudence and civil law? The method of this research is descriptive and analytical. The findings of the paper show that according to some verses of the Holy Quran as well as authentic narrations and other reasons, the two concepts of "mis-association" and "harmful retention" are related to the ruler's divorce, and the right of the wife to refer to the ruler is reserved for the time of pervasive (severe) distress and constriction