MATRIMONIAL RIGHTS IN MARRIAGE PORTION AND THE PRINCIPLE OF FAIRNESS

One of the matrimonia, and in the meantime controversial issues is the legal outcome of a wife action when she waives her claim to her marriage porion or transfers it as a gift to her husband. Generally speaking, under shariat, marriage is considered a religious duty. It is also regarded as an ethical and social contract. Seen in this way, its consequences are not confined to the spouses matrimonial relationship inter, but, as a legal rule, it transcends the ambit of the free will or the consent principle and as such, it is treated as a distinct legal institution whereby order can be assured.One of the wifes matrimonial rights is dowry or marriage portion. Upon agreement to its value or amount and, once the marriage contract is executed, the entitlement to it will be effectuated as follows: in cases where the marriage portion is choses in possession, then upon marriage it becomes the wife property; however, in cases where it is choses in action then upon marriage wife will be the creditor and accordingly will be entitled to claim it immediately. Yet, according to Article 1092 of IRI Code if the husband divorces his wife before the consummation of marriage, the wife will be entirled to half of the marriage portion he has the right to demand the return of the surplus, in original, in the equivalent, or in value. In comparing Articles 1092 and 1082 of the IRI Civil Code one may come to the conclusion that of that if divorce occurs before the consummation of marriage the wife will lose half of her portion marriage to her husband. However, during the course of such shifts in ownership, the wife may either waives her right of claim to her marriage portion or transfer it to the husband as a gift. Under these circumstances, as many authoriries have concluded, the wifes legal position will change from an owner or a creditor into a debtor. The main object of this essay is to examine such lines of approach and offer some feasible propositions.