An analysis of the legal nature of “Mahr Al-Musamma” (determined marriage portion) and its effects on Imamiah jurisprudence and Iranian law

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.