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

annulment of marriage is one of the important issues of marriage contract, which has important financial effects and consequences. The purpose of this article is to examine the legal jurisprudence of marriage dissolution and its economic effects.

The research method is descriptive and analytical and this research is theoretical. The method that has been used to collect information is library-based and it has been done by referring to international and domestic books, articles and documents.

Ethical Considerations:

 In this article, the originality of the texts, honesty and trustworthiness are observed.

Since the sacred law in not interrupting the financial relations of the couple after the dissolution of the marriage, has sought to provide the necessary benefits of the woman. Accordingly The financial relations of the couple are not only not interrupted after the dissolution of the marriage, but the main beneficiary of this survival is the wife, and the holy law has tried to ensure the necessary benefits of the women in not interrupting the financial relations of the couple after the dissolution of the marriage. On the other hand, in the case of annulment of marriage, if the marriage is annulled before intimacy, the woman is not entitled to dowry, except when the marriage is annulled due to adultery, in which case the woman is entitled to half of the dowry.

The lawgiver has not specifically paid the condition of halving property, almsgiving and alms in the dissolution of marriage with dowry, while attention to these important issues from the lawgiver's side is expected by everyone.

Among the rights of the wife on her husband is the right to demand dowry and alimony. Alimony is one of the husband's debts, and dowry is a religious financial debt right in most cases. Sometimes, in addition to alimony and dowry, the husband has other debts that must be paid to creditors. Apart from the doubts that exist regarding the priority of alimony and dowry over other debts, it should be consider what fate do they create for the husband's financial ability for Ḥajj, because the most important condition for Ḥajj is financial ability, and one of the issues that can challenge the realization of this condition is the husband's indebtments to his wife due to dowry and alimony. Regarding the hindrance of debt from financial ability, there are several hypotheses, which are: the hindrance of debt, choice and non-hindrance, and if debt is a hindrance, either it should be said that the obligee must fulfill his debt and Ḥajj is not obligatory on him, or that in this conflict should be preceded by the one that caused it earlier. The method adopted in this research is the descriptive-analytical method, the result of which is that although the famous Imamiyyah jurists consider debt as an obstacle to the realization of one's ability, the correct theory is that one is free to choose one's debt and visit Ḥajj.

Ratifying a bill in the Judicial Commission of Islamic Consultative Assembly (Majlis) on setting registration fee of Dowry over 14 gold coins in the time of registering marriage contract (Nikah), each spouse 50% , and depositing it into the Fund of Providing Dowry for Needy Couples, has put the family law on the threshold of drastic transformation. Although this change is made to serve the legal institution of marriage and reduce the amount of dowry as well as facilitate the marriage process, but its functionality is under serious doubt and even it appears that its negative consequences far outweigh any positives. Bills ratified without considering the rights of the parties in the marriage contract not only could provide a platform for men to abuse but also create unfavorable situation for women and causes girls and women as well as men be reluctant towards the marriage compared to the past. This is the fact that women may assume that marriage not only limit their freedoms, but also their life could also be faced with financial and economic threats. Thus, they gain fewer financial benefits in their common life and in order to get rid of a wrong and unsuitable marriage, they must sacrifice their ownership and sustainheavy and unfair costs. Therefore, it is highly recommended for new bills, while holding a compressive approach towards liberty and contractual rights, to provide the goals of the legal system and secure the rights of both parties. Consequently, the current study by descriptive- analytic approach and by collecting data from the library sources, while attempts to survey the fundamental and legal aspects of this bill, also provides solutions and suggestions with the view on the couple's legal system of in France.

One of the important issues of financial relations between couples is the reference of the wife to the dowry of the husband, especially the reference to the dowry, which is a subject of discussion and opinion and is one of the issues affecting the society. The purpose of this article is to examine the mentioned topic from the point of view of jurisprudence and law.

The research method in this article is descriptive and analytical. The materials and data are also qualitative and data collection has been used.

Ethical Considerations:

 In this paper, the originality of the text, honesty, and trustworthiness are respected.

The findings showed that the wife's recourse is in two forms: mabhajl (redemption) and roju'a from the dowry gift.Production and employment are not directly mentioned in Islam, but the importance of production and employment can be inferred from numerous verses and traditions. In other words, in the verses and narrations, numerous indications of the basics of production and employment to create prosperity and fight against poverty can be inferred. From this point of view, the use of natural resources (land), labor force and human management are the most important jurisprudential mechanisms of production and employment. Also, the production and application of knowledge, the use of expert staff, double work, proper management of resources, economic jihad and promoting the culture of consumption of domestic goods are among the most important mechanisms for the realization of the knowledge-based economy.

Regarding the role of knowledge-based economy in production and employment and therefore economic development, it is necessary to formulate policies in line with the production of knowledge and the use of expert and efficient forces. The subject law has also accepted the opinion of famous jurists.

Many rights and duties have been existed before Islam, and the legislator has confirmed them. Financial rights of men and women are also among the things that have been approved by the legislator, and the certain limits have been determined and decrees have been issued for each of them. Since rulings are subject to interest and corruption, and these matters are also assigned to topics; Therefore, the temporal and spatial conditions and lifestyles are affected to their changes and create the possibility of changes in rulings. Some of the financial rights of men and women that have been examined in this article are included: the topics of blood price, dowry, alimony and permission in financial possessions. In this research, an attempt is made to investigate the Shari'a rulings related to the financial rights of men and women with a descriptive-analytical method. That the financial rights of men and women are religious or subject to temporary variables, that the effect of time and place on women's financial rights and that the financial rights of men and women in Islam are compatible with the expediency of women today, in a way that is more compatible with justice and causes more protection for women's rights be made with the results obtained from this research, it is possible to consider rulings on the equal enjoyment of financial rights for women; Including equality in the price of blood on the soul and organs, having alimony commensurate with the dignity of women considering the progress of today's life, not paying excess dowry in divorce`s khol`a and also not requiring permission in financial seizures considering the financial independence that women have at the present time.

One of the financial rights that is created for a woman in the marriage contract is Mahr. In the present study, the formalities and mechanisms of Mahr demand by the wife will be investigated in the light of new legal developments, including the circular of the head of the judiciary and the law of the third five-year development plan.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

The findings of the present research show that the circular of the Head of the Judiciary, in accordance with paragraph B of Article 113 of the Law of the Sixth Five-Year Development Plan, in line with the wife's referral to the document registration office to collect Mahr  With the wife's right to go directly to the court within the framework of the general rules of the civil procedure law, it creates practical challenges.

Ethical Considerations:

 In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

If the Mahr is documented in a document, the wife must first apply for the issuance of a procedure to claim the dowry through the office of the marriage registrar and the registry office, and she does not have the right to directly demand the Mahr through the court. Also, if it is necessary to go to the court, the wife is obliged to pay the court fee based on the daily price, which is in conflict with the rules of civil procedure.

This paper purports to analyze imposing registration fees on that part of Mahr higher than a certain level (Mahr Sunnah) from an economic perspective. The proponents of this plan believe that high Mahr is a main obstacle for young men’s marriage, and in the case occurring, it can lead to various kinds of social costs. So, it should be deterred by imposing a tax on it. This plan only considers the benefits of one part of marriage (men) and ignores the benefits of the other side (women). So, it can disturb the marriage market and leads to other kinds of social costs that might be even relatively higher. The incentive mechanism of this plan encourages the substitution of Mahr by other provisions in the marriage contract such as asking for divorce right by women, marital properties equal division, out-of-formal wedlock arrangements that are non-recognizable by the law as Mahr, and even leaving the marriage market for other counterparts such as cohabitation; all of them rise the transaction costs of marriage and might increase the average age at first marriage and decrease the likelihood of fertility.

AbstractDowry is a contract. This contract is set out in Islam as a contract to be considered a gift from a couple to a wife. A large number of gold coins as dowry has become commonplace in Iran in recent years. This, in the event of a sudden fluctuation in the price of the coin in the short run, imposes a multiple equity obligation that is undoubtedly inconsistent with the contractual intention and contrary to the contractual intent. On the other hand, it has somehow triggered a cultural event, resulting from this phenomenon of unpleasant cultural consequences and the economic outlook on marriage and the marginalization of marriage philosophy based on the spiritual-emotional view and the subordination of spiritual attributes. Also, this phenomenon in Iran's current economic situation is one of the factors that increases the price of coins and gold in the Iranian market. In this unfavorable economic situation, the wife seizes the husband's property and economic capital to receive from that her dowry. It causes it to be shut down as part of the economic activity of society and this disrupts the public order of society. Solutions such as paired Commitment to the usual price fluctuation, the prohibition on coins being stamped highlights the need for appropriate legislation in this regard as the basis.

One of the controversial issues in marriage is that it is a transaction. According to different viewpoints, there are two theories regarding the marriage contract. Some believe that it is exchangeable and others believe that it is non-exchangeable. Of course, in the meantime, this hypothesis is also raised that it is pseudo-exchangeable. Each of them have cited some evidence. The present article tries to analyze the issue of lien with the nature of marriage. Lien is one of the rights that often arise in exchange transactions and in marriage, it also implies a transaction, and the reason for its creation is the guarantee of receiving the Mahrieh (the obligation, in the form of money or possessions paid by the groom, to the bride at the time of Islamic marriage) for the wife. In the end, this article comes to the conclusion that since there is a requirement for exchange contracts in the marriage contract, each of the parties has the right to refuse to receive compensation from the other party for submitting the exchange but this issue has nothing to do with the spiritual aspect of marriage, and the measures adopted in jurisprudence and legal issues that make it possible to compensate for losses and fatal damages in marital disputes should not be mixed with the aforementioned issues. Therefore, due to the transactional nature of the marriage contract and the exchange of the Mahrieh and also the exchange of compliance with it, the right of lien is proven.

The code of “implementation way of monetary convictions enacted in 1377” in a stringent policy imposed the assumption on debtor’s solvency except proving insolvency. In order to that policy, in all kinds of debts, this code sanctioned the detention against the debtor as he refused to pay off the debt. Pursuant to the aforementioned, the code of “family protection enacted in 1391” in its article 22 adjusted that regulation about dowry claim. According to this article only the demand for to amount of 110 golds or the amount of dowries that equals 110 golds was included by the general system of the code of 1377 and the amount of dowry that is upper than what was mentioned was excluded from that general system. Ratification of “I.W.O.M.C enacted in 1394” and the explicit revocation of “I.W.O.M.C enacted in 1377” institutes a new system. This new system consists of the segregation between the debts that are preceded by acquiring property and the preliminary debts. The new system has reversed the burden of proof about the recent kind, in a way that about this kind, it has imposed the assumption on the debtor’s insolvency. Also, about the preliminary debts, according to this code, the sanction of detention is providing the proof of debtor’s solvency. By the ratification of this new system, permanence of the particular provision that is embodied in article 22 of the code of 1377, became vague.

Dowry or Sadaq is a financial obligation that a couple is obliged to pay when the marriage contract takes place. He is also obliged to pay it every time the woman demands after the marriage. Having property, being able to acquire the dowry by a woman, being known, having a legitimate rational interest and being surrenderable are the conditions of the dowry based on articles 1078 to 1080 and other articles of the Civil Code. In this article, the author discusses five types of dowry (gold coin, cash, dowry, pilgrimages and flowers) and states that regarding the gold coin, its amount is determined by asking the gold and jewelry union. In the case of cash, its amount is calculated in proportion to the change in the annual price index of the time of payment compared to the year of the contract execution, which is determined by the central bank, unless the couple has agreed otherwise during the execution of the contract, regarding the dowry by referring to an official expert. Its value is determined. In regards to pilgrimages (Hajj and Karbala, etc.), inquiries are made to the organization of Hajj and pilgrimage, and regarding flowers to the florists' union.

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.

The possibility of using criminal tools in legal affairs is a matter of dispute between jurists. If a person is accused of committing a crime, the possibility of his arrest has been accepted in some cases, but the use of such punitive measures in legal matters requires the examination of its authorization or prohibition from a jurisprudential and legal perspective. The conflict of rights between creditors and debtors has led to disagreements in this regard. Considering that the principle in initial treatment of individuals is that their actions are based on integrity and innocence, it seems that if the debtor claims insolvency, it will not be possible to detain him until the truth or falsity of his claim is proven. Imami and Sunni jurists have also examined this matter- an examination of the evidence of their rulings will also demonstrate that it is not possible to order the arrest of a debtor claiming insolvency. In this article, the correct ruling in this case will be determined through the epistemology of this important point of view from perspectives of the jurists of both sects and judging the proposed opinions. Noting the correct theory in jurisprudence, we will provide a detail interpretation of the relevant laws applicable to the debtor claiming insolvency.

Under Articles 1121, 1122, and 1128 of the Civil Code, the legislature has granted the wife the right to terminate the marriage. This is to prevent harm to her. Assuming that the reason for the termination is attributable to the husband (such as castration, micropenis, misrepresentation, and violation of the condition of the adjective), although the termination is done by the wife, her ineligibility for dowry on the one hand and non-compensation of material and spiritual losses is unfair. On the other hand, the wife should be compensated for damages, especially in cases where marriage is terminated before consummation. It would seem that granting a "right to termination" should not be sufficient as the only sanction, and at the same time, financial support should also be provided to compensate for the material and moral losses associated with divorce. However, under the law, in case of termination before consummation, no dowry is given to the wife except impotence. Therefore, it is necessary to review Article 1101 of the Civil Code. The current study examines other cases of dissolution of marriage before consummation and the wife's right to at least half of the dowry in them. It is believed that the entire dowry is not just against intercourse and some of it is against the marriage contract. Moreover, according to the discussion of civil liability, the wife is presumed to suffer damages; Therefore, compensation is necessary.