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

AbstractOne of the essential needs of every family is the presence of a child who warms the heart of the family. Despite this, some families are deprived of the blessing of having children, and on the other hand, there are children who have been left without a guardian due to natural and unnatural reasons. This is where adoption comes into play. In Iran's legal system, with the approval of the law on the protection of Unsupervised and poorly supervised children and adolescents In 2012, the institution of adoption underwent changes and the basis of adoption was placed in Iran's legal system. The purpose of this research is to investigate the approach of the Iranian legal system towards the institution of adoption and its effects and the way it is carried out. It has created support for orphaned children, but it has not been able to create the effects of a real child in relation to an adopted child.

Article 1056 of the Civil Code, sanctioned in 1934, delineates a significant impediment to marriage, referred to as a "heinous act." This act results in an enduring prohibition against the marriage of the offender to their sister, daughter, or mother. Legal doctrine and judicial procedure commonly interpret this act as "Sodomy" (Lavat). The term "Sodomy" in the context of criminal law is linked with the concept of a heinous act as defined in Article 1056 of the Civil Code. Nevertheless, these interpretations often disregard the potential divergence between the civil interpretation of a heinous act and the criminal definition of Sodomy. While the analysis of Lavat as a criminal offense falls beyond the scope of this article, which primarily operates within the realm of private law, particularly family law, it's essential to address the question of whether the civil concept of a heinous act aligns precisely with its criminal counterpart. This inquiry prompts a review of the concept and definition of Lavat in criminal law. The trajectory of legislation concerning Lavat as a criminal offense reveals shifts in the legislator's criminal stance on this matter. This alteration in criminal perspective warrants scrutiny from the angles of investigative elements and resultant penalties. However, the primary objective of this article revolves around investigating a pivotal question:How does the alteration of Lavat's new criminal definition influence the prevention of heinous acts, as outlined in Article 1056 of the Civil Code? To conduct a comprehensive analysis of this subject, it's imperative to address key questions central to the discourse. Is it accurate to equate Lavat with a heinous act without dispute? What overlaps exist between instances of Lavat and heinous acts? Could the principle of legal marriage prohibition extend to cases of heinous acts that do not align with criminal offenses? In essence, what links the issue of Lavat in the 2013 Islamic Penal Code to the concept of a heinous act in Article 1056 of the civil code? The significance of this inquiry lies in determining whether the criminal definition of Sodomy corresponds precisely with the civil understanding of a heinous act. If equivalence exists between the two, a person convicted of Sodomy would be forever barred from marrying the daughter, sister, or mother of the violated individual. However, if disparity exists between the two concepts, an individual may face marriage restrictions despite not being convicted of a Sodomy crime. This research employs a legal methodology while delving into Islamic jurisprudence, primarily focusing on domestic law. It examines alterations in the definition and instances of the Lavat crime in criminal legislation prior to and following the Islamic revolution. While abstaining from an in-depth exploration of the criminal nature of Lavat, the study emphasizes the factor of penetration and its significance, especially within the 2013 criminal code. This investigation endeavors to establish the correlation between the concept of "Lavat" and the concept of a "heinous act," as outlined in Article 1056 of the Civil Code. The research aims to elucidate the authentic interpretation of a heinous act within family law as a barrier to marriage, contrasting it with the criminal concept of the Lavat crime. As per the 2013 Islamic Punishment Law, and in contrast to previous periods, "Lavat" is only recognized when penetration reaches the stipulated threshold (complete penetration). Anything less is termed "tafikhiz," signifying the act of rubbing genitals on the body of the violated person. However, for the purpose of invoking the heinous act described in Article 1056 of the Civil Code, complete inclusion, even if not meeting the specified threshold, suffices to enact the prohibition on marriage. Consequently, criminal Lavat serves as an example of a heinous act, but all instances of heinous acts may not necessarily qualify as Lavat. Therefore, mere acquittal from a Lavat charge does not automatically result in the prohibition of marriage due to a heinous act. To underscore the distinction between Lavat and heinous acts, a proposed revision to Article 1056 of the Civil Code has been offered. The revised article would read: "If a male engages in a heinous act with another male, involving any extent of penetration, he is precluded from marrying his mother, sister, or daughter."

One of the controversial issues in the principles of jurisprudence under the topic of balance and preference is the possibility of using or non- using of unwritten preferences, which will have a significant effect on Ijtihad. The famous saying of fundamental scholars in jurisprudence (named Osulion) is based on using unwritten preferences. Regarding the dependence of jurisprudence and the principles of jurisprudence (Osul Fiqh), as well as the interaction and correlation of Imami Fiqh with the legal system of Iran and considering the fundamental importance of the family in terms of individual and social, and the problems and legal gaps in this field, this article has an attempt to provide a practical explanation in this context. In this research, firstly, the use of unwritten preferences in the principles of jurisprudence has been investigated, then the applications that may exist in family law have been discussed. Finally, in order to fill the existing gaps, in Article 167 of the Constitution Law, jurisprudence sources have been referred to. It is necessary to mention that unwritten preferences are used in the principles (Osul) to prefer between two narrations, but in jurisprudence and law, especially family law, it is considered to distinguish the issue.

Since the beginning of history, the family has been the main social institution, the foundation of societies and the origin of cultures, civilizations and human history. Dealing with this fundamental building and guiding it to its true position has always been the reason for reforming the great human family and neglecting it has caused mankind to move away from real life and fall into the abyss of destruction. In today's changing world, few things can be found that remain unchanged, the changes have also included the family and major changes have been made in it. In this article, we intend to express the state of the family and its transformations in the West and Iran and the effectiveness of the solutions provided in Islam to preserve this sacred social institution. It is important to pay attention to this issue because western societies are seeking to develop laws that solve human issues and problems by referring to human reason and changing moral and behavioral norms. In regard with family and human issues, trusting the humanistic schools is quite pointless and useless, and the only way is to use the religious model because the divine laws are comprehensive and have the ability to ensure the happiness of this world and the hereafter.

The ruling of the conditions is among the various jurisprudential rules which has the base part of some rules and provisions of family law governing the whole country. Based on this rule, the couples must be commited to conditions written in marriage law texts. The jurists have controversial idea about the validity of initial constructive additive rules. This article hs about the validity of initial, constructive additive rules. The validity of additive (Eg-haghi) rules has the seal of the Qur'anic source. In this article, while criticizing the arguments against the Sharia, the principles of jurisprudence, the legitimacy of the conditions of origin, the basis and attachment of the marriage contract, opinions, is being evaluated legally and jurisprudentially.

The prevalence of Covid-19 has affected all social and individualactivities. It is obvious that the consequences of this pandemic have alsospread to the family as a social and legal institution. Especially with theprolongation of the disease, in addition to economic effects, its legal effectscan also be observed. Restrictions on preventing the spread of the diseasecan affect the rights and responsibilities of the family members. In thesecircumstances, it is necessary to identify the legal foundations that lead tochanges in these rights and obligations. It seems that principles such asharmlessness (LaZarar), urgency (Ezterar) difficulty and embarrassment andavoiding possible harm can help the Iranian legal system to find a suitablebasis for adopting legal solutions in the family. After that, one can commenton each of the couple's or parents' responsibilities. Issues such as maritalduties of the couple, meeting with the child, cohabitation of the couple, etc.in the event of the pandemics of a contagious disease, may be governed bydifferent rules which can be clarified by using legal principles.

A comparative study of the family law in Islamic countries such as Iran and Egypt, considering the differences between religions, is necessary to obtain the links and differences that exist to achieve the best rules in the current era and can prevent the penetration of abnormal Western rules in Islamic countries. Dowry is one of the important issues of family law that it's significant cannot be ignored in society, and it should be carefully addressed and its rulings examined. One of the cases that can be studied in this field is the study of the necessary conditions for dowry and its payment. In this research, we evaluated it in Iranian law, which is based on Imami jurisprudence, and Egyptian law, which is in accordance with Hanafi jurisprudence, to determine its dimensions. By studying jurisprudence and the laws in the rules of these two countries, the aim of this study is to find out what are the conditions of the dowry payment and whether it is possible to pay it in current rate in Iran and Egypt according to the legal principles of these countries and accepted jurisprudential teachings. What are its conditions and what are its differences and similarities? By examining the various reasons, it seems that we should accept the dowry payment based on current rate in Iranian and Egyptian laws despite the similarities and differences which is existed in them. Although in Egyptian laws unlike the Iranian laws have not explicitly mentioned in it, but for some reason it can be discussed.

Gamophobia[1] as a social harm enjoys various economic, cultural, and social causes. Some legal structures of the family in the Islamic Republic of Iran have caused men and women to be afraid of marriage and to continue a single life. Husband's financial obligations to the wife and wife's social constraints within the family law as the factors of delaying marriage have made marriage risky for them and have pushed men and women to tend to alternative marriage patterns. This situation is mainly originated from the reckless legal interventions of the legislator as well as the social developments of our time. The law as science has significant potentiality in preventing gamophobia. Taking advantage of a library research method, the present study, while describing the legal structures of gamophobia in the current legal system, examines and evaluates the legislative and contractual capacities of law in controling the fear of marriage and elaborates the existing challenges.

Personal status are those attributes that civil law makes them the subject to legal effects for individuals, In this way, considering that the mentioned regulations can affect the family life of individuals and situations such as converting to a new religion, including Islam, can cause a change in a people personal situation, it will be important to address this issue. This article uses descriptive-analytical method to answer this question: how is the situation of personal status, especially the new Muslim marriage, in Iranian jurisprudence and law? And what conditions and rights are provided for him? According to studies, this issue is one of the issues that are considered as legal gaps. However, in Imami jurisprudence, there is scattered valuable information about the new Muslim personal status following the family discussions. According to the rule of Jab, below these issues, the effects of the situation that is due to the things that happened to the new Muslim before Islam will be removed from him. Due to the great importance of strengthening the family in Islam, there is a verdict on the authenticity of the new Muslim marriage, even if it is opposed to the Islamic rules, except in cases where it is expedient to differentiate more than the expediency of living together. In these cases, it is not a sin for a new Muslim, but the continuation of the marriage is forbidden. Therefore, according to Imamieh jurisprudence, the marriage and its effects are recognized even if they are contrary to Islamic rules.

Husband who do not perform certain duties such as payment or sexual relations, cause marital maladjustment and ultimately causes the wife to be dammaged. Despite the attention to this subject in Qur'an, traditions and Shia jurisprudence, it is not well known in Iran's laws and jurisprudence.when a husband does not perform his duties while he has ability to do so, there is a disobedience. Refuse to pay or to have sex, abusing sexuality, being indifferent etctra are examples of disobedience. In current laws financial obligations have been guaranteed by effective performance and even punishment, but there is no guarantee for effective implementation of non-financial obligations such as having sex. On the other hand, on the basis of the current rules, it can be considered that the husband's disobedience leads to distress and constriction of his wife. And on the other hand, this is the violation of the general obligation of Good companionship, so judges for Preventing uncertainty and suspension of wife, can issue divorce, even without proof the distress and constriction. It is also possible to take a more fundamental step by identifying the disobedience in Iranian law, specifying the examples and guaranteeing its implementation.

The purpose of this paper is to study the difficulties faced by women in claiming their family rights through law. The research has been done by qualitative method. Data were collected through semi-structured interviews with 21 women who had experience of marriage and marital life and were selected by purposive sampling. Data were analyzed using qualitative content analysis technique. According to the research findings, the legal difficulties of claiming women's family rights are included in four categories: the difficulties of using the terms of marriage contract, the dominance of the male view in drafting and enforcing laws, the inefficiency of family laws and the conflict between legal demands for rights with the continuation of a peaceful life. Accordingly, despite women's awareness of many of their family rights, mis-institutionalized attitudes and actions resulting from the cultural context of society, legal gaps, and the possibility of violating legal obligations play an important role in women not enjoying their rights.

There is no doubt that in the field of personal status, including family law, legislator's will is the basis of the validity of legal norms in the Iranian legislative system. However, territory of family has never been secured against government intervention due to social and economic developments. The main question in this research is the analysis of this intervention and its credit effects. Thisintervention can be expressive and thus the law can be regarded as the only instrument for stating this regulation which hasderived from the will of legislator, but, sometimes the law is an instrument for creating a legal ruleand in this case that the relationship between the will of the legislator and the will of the government is of considerable importance and causes some challenges and questions. For example, what effect does the rule of necessity of registering permanent marriage have on marriage? Is the effect of this rule merely positive or should it be considered affirmative? Thisstudy attempts to analyze the four roles of state in the legislative system, namely select of a subject and,recognizingsecondary titles, choice of legal rules,supervision and ensuringand finally establishmentof rules apply to behavior between spouses, how their rules of family are conformed with the social facts and offering some solutions to overcome some of existing legal challenges in this field.

< p >Today, the contemporary world has been developed significantly in medical science such as artificial insemination, organ transplants and transsexual change. However, due to the new nature of these developments, they have not yet been able to find their right position in low. Therefore, it is needed more legal reflections on this type of developments.Transsexual change on the people who have physical problems, as a major issue in this type of developments, has been discussed from the past more or less, but in the case of transgender people is not very old   therefore, their issues and their problems deserve double attention in the field of law.  One of the most important issues of transsexual change is related to the family. Therefore, this study examines the relationships between transgender couples or transgender applicant with their family and their effects on all family relationships from the legal point of view. And this question arises due to the specificity of this issue whether the legislator has considered all of its injuries or following problems and do the rules have necessary accountability for this subject or not? In this regard, current article examines the effect of transsexual change in non-financial relationships of couples and due to legal loopholes in this matter proposes legal solutions.

The main purpose of this dissertation is to Analyze of judicial divorce foundation to check the defects. Hence, judicial divorce foundation should be in a way that it is according to legal standards and the protection of women's rights and supports the foundation of the family. Finally, it was concluded that the 'asr va haraj (hardship and harm) mentioned in verses of Holy Quran and narrations cannot be a general rule, but the rejection of haraj or harm was more justification for the judgments. Also, its application in the family ground leads to an increase divorce in society, which is inconsistent with both religious standards and social policy. Therefore, according to necessity of supporting the wife, the necessity of accordance with religious standards, And also support in the principle of family solidarity, the husband's requirement for enact duties and the rule of "the governor is legal guardian for refuse" are more appropriate.

The theory of Maqāṣid al-Sharīʿah, as one of the key principles in Islamic jurisprudence, seeks to achieve the primary objectives and goals of Sharia, leading to the individual and social well-being of people. This article examines and analyzes the theory of Maqāṣid al-Sharīʿah from Ibn Ashur's perspective and applies it to family law in Iran. The first section explores the status and impact of this theory in the derivation of jurisprudential rulings, analyzing its role in the formulation and reform of legal codes, particularly in the field of family law. Subsequently, the challenges and issues associated with applying this theory to family law in Iran are identified and examined. The strengths and weaknesses of this application are evaluated, and suggestions are offered for the revision and improvement of family laws based on Maqāṣid al-Sharīʿah. Finally, the findings are summarized, and an overall assessment of the theory's application to family law in Iran is provided, along with recommendations for future research. This study demonstrates that the theory of Maqāṣid al-Sharīʿah can serve as an effective tool for the reform and improvement of family laws in Iran, but it requires further detailed examination and the development of specific criteria for its practical application.

Artificial intelligence (Al) is one of the branches of computer science that focuses on developing intelligent machines and technologies. The introduction of Al in various fields has doubled the need for examining this subject due to its novelty, insufficient understanding, and lack of clear legislation. Media, as one of the main pillars of today's generation's life and pervasive communication, has played a vibrant and important role in the development of education and culture within societies and families. The integration of Al with new tools and technologies, including media, provides capabilities beyond the past, enabling the impact and analysis of societal information, which challenges concepts such as freedom of expression, privacy, audience rights, and consumer rights. These challenges can cause serious harm to families, which are considered the most important pillar of society. The intellectual property rights system serves technology and development to benefit society by encouraging individuals to expand their creativity and innovation through protection. However, all these topics should be based on public order, good ethics, and the welfare of society. Therefore, in this research, we examine how to deal with the support or lack of support for Al technologies, which can be risky for families and society. Additionally, we explore the appropriate approach towards media that are not under the Iranian intellectual property rights system.

Peace or reform is one of the values of the family that is rooted in other moral areas of the Qur'an, and the reform of nature and the elimination of family problems means compilation of hearts and peace and reconciliation between women and girls or other members of the family. A third party mediation between the lawsuit to resolve the dispute and resolve the dispute without resorting to legal and judicial methods has been very much considered and recommended by the holy book of Islam. In family cases, considering the existence of three major indicators in the family institution, namely, the value, affection and hidden privacy of the family, which distinguishes this center from other institutions in the community, peace and compromise will reduce fruitful litigation. It is intended to clarify that in the event of differences between couples, the Holy Quran, in order to prevent the deepening of their differences, is the best way of arbitrating and mediating two individuals in the family of both parties to resolve the problem with goodwill and experience, and peace between them and Compromise.

Clause 49 of the protecting family law has recognized not registering the marriage, divorce, and revocation of divorce a crime and has determined imprisonment for up to one year. This study, with the aim of bringing the Islamic republic of Iran’s law into concordance with religious and rational standards using a comparative and analytic method, tries to do a jurisprudential and legal research on the first section of this legal clause which has been or may be used for proving its legitimacy. Finally, the conclusion is drawn that there is a lot of significance and necessity in registering the marriage and there is a lot of harm and damage such as spoiling the family members’ rights and paving the way for various family crimes and social harms in the lack of it. These merits and demerits though, cannot be justifications for criminalization or not registering. Even so, the religious permit to administer and enforce punishment for such actions is not only difficult, but also impossible, and the principle of the presumption of innocence, the principle of the autonomy of the individual (that no one is presumed to have the position of a guardian over another), and the generality of the principle of the prohibition of harassment and nuisance, and the legal right of respect to rights and individual freedom obstruct it.

The effectiveness of the family law, depends on its effectivity in society, and any incompatibility of the social and legal system governing the family, is preventing this from happening. This damage, which is already present in our legal system, is due to factors that are the most important of which are the method of inacting the law. It seems that attention to reality and the study of social studies in a scientific manner, can increase the effectiveness of family law and bring it closer to its main goalThe effectiveness of the family law, depends on its effectivity in society, and any incompatibility of the social and legal system governing the family, is preventing this from happening. This damage, which is already present in our legal system, is due to factors that are the most important of which are the method of inacting the law. It seems that attention to reality and the study of social studies in a scientific manner, can increase the effectiveness of family law and bring it closer to its main goal

The purpose of this paper is to provide a brief overview of ideological approach to family regulations in Islamic Republic of Iran (IRI). Therefore this paper provides basic information and analysis and discusses about family change and variation in contemporary Iran.
Design/Methodology/Approach: Several approaches have been used to analyze the failure of Iran's legislative policy in family regulation. The findings of this study imply that the evolution of family institution leads to the formation of individuality as well as value pluralism and consequently deepen the "democratic culture" among Iranians. Demonstrating the interaction of state and family institution it can be claimed that democracy is a dynamic and ongoing process.
The results of this study indicate that the evolution of a social institution can make changes in other social institutions which implies that there is a significant relationship between the evolution of social institutions and the formation of the rule of law.
Originality/Value: This Article is one of the first attempts to address the role of family change in the formation of rule of law in contemporary Iran. It has tried to provide a basis for understanding and delivering values by referring to social processes which change people’s mindsets.