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

The jurists of Islamic Denominations, while recognizing the right of lien for the wife in marriage, believe that the husband's ability to pay the marriage portion does not affect it. The Iranian legal system, following the well-known opinion of Imami jurisprudence in Article 1085 of the Civil Code, has recognized this right for the wife. Also, the Supreme Court in its decision of unity of procedure No. 708 dated August 12, 2008 considering the application of Article 1085 of the Civil Code and the well-known opinions of jurists, has not considered the husband’s insolvency in paying the marriage portion and apportionment of the marriage portion by the court as an obstacle to the wife’s right of lien. Therefore, the wife can refuse to obey until the last section of the dowry is paid, citing the right of lien. The following article uses a descriptive-analytical method to examine the difference between the concept of lien in a marriage contract with other reciprocal contracts and analyze the views of  Imami and Sunni jurisprudence regarding the reciprocal or quasi-reciprocal nature of marriage, to determine whether the right of lien is exercised completely and similar to other reciprocal contracts, it is difficult to enter into a marriage, and it seems that in cases such as the  insolvency of couple’s marriage portion or the marriage portion payment installment sentence, it can be considered to be abrogated by invoking jurisprudential rules such as the rule of i‘sar and la dharar.

Imāmī jurists have considered the agreement of the couple to establish a marriage bond for a limited period as a temporary marriage and one of the types of marriage, which can be considered as a kind of contract based on the exchange of "marriage portion" for "sexual exploitation", due to the trends in some exchange rulings. The fact that "marriage portion" and "duration" are essentials in temporary marriage has caused a group of Imāmī jurists to consider it as an example of a "lease contract". Assuming a temporary marriage as rental has caused this contract to face important jurisprudential and moral challenges, such as the degradation of the status of women. The findings of this study, which was performed by analytical and descriptive methods and based on library sources, show that despite some apparent similarities between temporary marriage and rent in some elements and rulings, the nature of temporary marriage is the couple's agreement on married life in a certain period and there is no exchange between the sexual productivity of the wife for the payment of the marriage portion by the husband for a certain period of time.

Most jurisprudential sources address misrepresentation or deception (Tadlis) in marriage contracts and elaborate on its instances. On the contrary, the Civil Code does not touch upon the option of deceit in the marriage contract and offers nothing in regards to its instances and effects. Therefore, this paper first examined. the jurisprudential and legal senses of misrepresentation, and then investigated the conditions and elements of misrepresentation. It was revealed that misrepresentation only requires external/objective elements (actus reus), not mental elements (mens rea). Afterward, a number of old and new instances of misrepresentation were examined considering modern developments in science. Some instances fell beyond and some fell within the scope of misrepresentation. In terms of misrepresentation effects, the effects were positive both during the engagement and when the marriage contract is signed, and the party committing misrepresentation assumes criminal liabilities as well as civil ones.

Although there is a wide and detailed discussion about determination of marriage portion and its quality in the jurisprudential and legal sources of the country, but in some cases, the legal precedent, by ignoring the existing sources, has followed the custom, which has led to results contrary to the legal principles. Accepting the condition of giving possession of future housing and creating an obligation in favor of a third party as the marriage portion, as well as the condition of “claiming if the couple can afford it” are examples of this discrepancy and indicate judges' disregard for rich jurisprudential sources. It seems that the source of this problem is the lack of clarification of the nature of marriage portion in the legal system of the country, which some have considered as a condition in the contract and some believe that it is an element of marriage. Each of these approaches plays a decisive role in the possibility of creating an obligation in favor of a third party, giving possession of future housing, or determining a right as a marriage portion. The author believes that the marriage portion under the titles of determined marriage portion and customary marriage portion is one of the financial and legal consequences of marriage on the husband, the amount of which may be changed as a determined marriage portion, with the consent of both parties, in the form of an ownership and exchange contract within marriage. In the case of being the determined marriage portion of an exchange nature, determining it by a third party or in his favor will not be correct. In addition, the possessive nature of this type of marriage portion causes the determination of a right as a marriage portion, the insertion of the condition of future housing, as well as the insertion of the condition of the marriage portion in the form of conditional on ability to be doubtable.

Specific rules such as division of marriage portion into halves in case of divorce before sexual intercourse and the wife’s right to refrain from submission until the marriage portion is paid have been applied to marriage portion according to Islamic jurisprudence and law of Iran. A significant question arises whether the spouses may, after concluding the marriage contract, increase the amount of specified marriage portion by mutual consent so that the marriage portion rules apply to the added amount? This paper, through descriptive-analytic method, has studied the above said issue in jurisprudence of Islamic schools of thought and Iranian law. The results of this paper indicate that there is controversy regarding this question in the Islamic jurisprudence. The Hanbalis and some Hanafis apply the rules of marriage portion to the added amount. According to the opinion attributed to Malik ibn Anas despite the increase is accepted, a number of portion rules would not be applied to this amount. The Imami and Shafi‘i jurists do not consider the added amount as marriage portion. A review of the evidences proves that non-application of portion rules to the added amount is stronger. As regards this question, there is controversy in the Iranian law. In order to prove the validity of agreement to increase the specified marriage portion and application of marriage portion rules to the added amount, a number of evidences including freedom and validity of contracts principles, Taslit Rule, marriage portion not being an essential element of permanent marriage, 24th verse of Surah Al-Nisa, the right to decrease the specified marriage portion and validity of calculating cash money marriage portions at the daily rate have been put forward. However, in this paper, after the above said evidences have been reviewed, their capability to prove and their signification as to the application of specified marriage portion rules to the added amount has been refused. Nonetheless, it has been emphasized that given the fact that marriage is a part of personal status, under principles 12 and 13 of the Iranian Constitution, the religion and religious schools minorities are free to obey the rules of their own religion and school.

The financial relations of married couples in Islam are based on the principle of property independence. According to Article 1118 of the Civil Code, "A woman can independently hold in her property what she wants to do" and the husband does not have the right to manage, superintend, or supervise the property of the wife. One of the important financial effects of the marriage contract in the legal system of Iran, which is considered as the wife's financial rights and her most important religious and legal right, and is created by the marriage contract, is the marriage portion". Claiming the marriage portion by the wife is sometimes at the time of marriage, or at the time of the dissolution of the marriage contract, and relative to the above conditions, applying of the obligation of the husband and the entitlement of the wife of which has different effects. Considering that the civil law expresses some of these effects, in accordance with the Imamite jurisprudence, but it is silent on some of its other effects. Considering that, in accordance with Article 3 of the Civil Procedure Law, "judges of the courts are required to comply with applicable laws, issue an appropriate sentence, or terminate the hostility. If the laws are not complete or explicit, or if they are contradictory or there is no law in the said case, they may issue a ruling on the basis of authentic Islamic sources, valid adjudications or legal principles that are not in contravention of religious laws, and as a silent excuse, or imperfection or the conflict of laws, they cannot refuse to process a lawsuit to issue a ruling. Otherwise, they will be recognized as the one to refuse providing the rights and will be condemned to the required punishment". Therefore, it is tried in this article to express the viewpoint of jurisprudence and civil law on various forms of the marriage portion.

Based on famous saying of jurisprudents and accordingly Article 1082 of the Civil Code, marriage portion belongs to the wife as soon as marriage contract occurs, but the wife's ownership in half the marriage portion is still precarious and it will be totally established with the realization of some factors. There is not any disputes among jurisprudents in that the marriage portion is established in the wife's ownership with intercourse and innate apostasy of man, but in the case of death of husband and wife, there is controversy over whether the death of couple is among the factors that establishes marriage portion or not? This study investigated the views and evaluated them in an analytic descriptive method and finally, with regard to the correct and authentic narratives, reached to superabundance, word halving marriage portion upon couple's death is preferred to other comments.

Abestention right in marriage is one of the legal rights for the wife which is recognized in Shia Jurisprudence and Civil Law which means that in case of due marriage portion the wife can refrain from her duties beyond the husband until receive the whole of marriage portion. The matter which this article attempts to deal with, is whether, despite the husband's insolvency of paying the marriage portion, the wife still has a lien?
Hereof, three theories of the total Islamic jurists decisions, have inferred (extinction of lien theory, non-extinction of lien theory, and the differentiation theory between knowledge and ignorance of the wife regarding the husband's insolvency). Although, Article 1085 of the Civil Law and No.708 of Supreme Court Precedent are in accordance with the second view, which is famous Shia Jurisprudence, but this research, has considered the third idea as justice and fairness, because of the action rule and authentication of the implicit extinction of lien for the wife who is aware of the insolvency of husband, and according to some contemporary Jurisprudence, believe that the first paying of installment in case of ignorance of wife while the court of justice judge on Payment by Instalment of Marriage Portion, extinction of lien is more compatible with religion, family Interest and community.

The marriage contract is not a bilateral contract. But the marriage portion is fix, the marriage contract or after it, the marriage portion which specified, must have the essential elements of validity contract. Although, provision 1100 of civil law, imply the necessity of existence of these terms, and the difference effect of lack them in desert wife toward marriage portion, but didn’t specified the all terms. With the consideration of the silence of civil law, we will study of these terms and the effect of deprivation of each in measure of desert wife with consider of legal principle and the base enact of this provision.

The issue of sex-change and its acceptability or non-acceptability has always been raised in the Islamic jurisprudence. The Christian religion and the non-Shiite sect of Islam have taken it as inviolable. They have regarded respecting the alternations in the God’s creatures as the main reason for such sanctity. They maintain that sex-change is a sort of alteration in the “law of creation” and a satanic act and consequently it is illegal and unlawful. In contrast, the Shiite sect of Islam believes in the permissibility and non-sanctity of the sex-change. They have considered several reasons for such a permissibility including the principle of Ebahe, the principle of Javaz, and the jurisprudence rules of Ezterar and Nafye osro haraj.Someone who transforms his or her gender should be given a new identification certificate in accordance with his or her new identity. The socio-cultural consequences of the sex-change should also be taken into account. For example, in Iran, if the president changes his sex and becomes a female, he immediately will be deprived of his position since according to the article 114 of the constitution, “the president should be chosen from among the political or religious men and directors and needs to be competent”.It is also true for the judges, the leaders of the prayers, etc. which are especially for men and women cannot obtain such job opportunities.On the other hand, sex-change dissolves (annuls) the marriage contract since it leads to continuation of pairing among two persons of similar gender. The sex-change, roughly speaking, has no influence on the bride’s marriage portion since the wife will possess it as soon as the marriage contract takes place. The other edicts such as Edeh, Heyz, and Nafas are the writs which are especially for the women. Consequently, sex-change results in deprivation from Edeh. Sex change also deprives the women from the alimony in the enduring marriage contract. In the shot-term marriage, if the alimony has been stipulated as a condition, sex-change results in its deprivation. Sex-change has no influence on the payment of children’s’ portion. The sex-change of father does not takes away his guardianship upon the children. In addition, the mother’s sex-change cannot bestow the right of guardianship to the mother. Sex-change, also, does not cut off the family relationships and titles but it merely changes the family relationships titles and the very close kinship among the family members persists. Regarding the share of an inheritance of a sex-changed person, his or her existing gender will be taken into consideration. In other words, the gender of the heir at the time of the heiress death will be taken as a criterion for action. The sex-change of parents has no influence on the extent of their share of inheritance from their children. The sex-change has no effect on a person’s civil authorities. However, it is influential in some of his or her penal authorities. Although the sex-change does not take away a person’s penal authorities, his or her existing gender will be taken into consideration for punishment enforcement.The resumption of father from Ghesas-e-Nafs due to killing his child involves the father who has changed his gender. Regarding the difference between the blood-ransom for men and women, the crime’s gender at the time of enacting punishment will be taken into consideration. Concerning the enforcement of punishment for an apostate, the straitened circumstances and the accused interest will be taken as a criterion for action. The blood ransom will be paid to the plaintiff in terms of his or her gender at the time of demanding for the payment. Regarding the identification of someone’s mental soundness, the person’s new gender will be the criterion for action.

Twelver Shi‘a jurist's interpretations of marriage portion seem to have different views. Some jurist's interpretations apparently consider marriage as a kind of exchange contract and, accordingly, marriage portion is considered as an exchange. On the contrary, other jurist's interpretations make explicit that marriage is not a kind of exchange contract and, accordingly, marriage portion is not like an exchange contracts. As a result, Twelver Shi‘a jurists believe that marriage contract is not a kind of exchange contract although sometimes marriage is referred to as an exchange contract because some of the rules of exchange contracts correspond to some of the aspects of marriage contract. Therefore, marriage portion does not have the quiddity of an exchange; rather, it is a special gift determined by the Most High God which the husband has to pay to his wife. A special gift means that jurisprudential (fiqh) and legal rules of gift contract do not apply to it completely. The dominant view on the legal nature of marriage portion is like that of its jurisprudential (fiqh).

At the present time one of the emerging issues in medicine, psychology, sociology &law is sex change. Jurisprudence and legal works have explained provisions and duties of two groups of people who experience gender disorder namely: transgender and deformed genitalia in detail. A recent finding of Psychiatric knowledge reveals that some people suffer from transsexual problem-another new type of sex disorder which is distinguished from the other two categories mentioned above by its unique symptoms. In fact sex change is the exact term which can describe this group of people. Many contemporary Islamic jurist and lawyers allow sex change, but the impact and the legal consequences of this problem particularly on spouse relationship have not been thoroughly explained. Benefiting from the legal and theological sources and the legitimate reasoning of sex change, its impact on family legal system such as marriage, marriage portion, wife's waiting period, child custody and inheritance will be clarified in this paper. Ultimately it tries to justify the women's right that in case of her ignorance of gender problem of the opposite sex can lodge an appeal to the court of law for irreconcilable certificate.