Civil Law vs Religion Law

Published: 2021-06-23 20:22:18
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In Iran, civil law is the law that elaborates and handles challenges among people. Civil law deals with relationship issues especially between men and women, and therefore, it highlights what should be done in a case of divorce. As depicted by Quran, marriage is an endless activity and should not be broken. However, it allows divorce only on occasion that either party is suffering and cannot persevere anymore. Before the revolution, the man was the only party in a marriage who had the permission to divorce. Therefore, he was given two periods, one, he is given three months before the divorce can be finalized to reconsider his decision, and two, a man who has already taken an oath not to have sexual intercourse with his wife is given four months to break it. During the revolution, women were given as much power as men under civil law to initiate the divorce if the realize that she is suffering in the hands of the husband (Abbasi-Shavazi & McDonald, 2008).

By religion law before the revolution, the clergy contradicted the family protection law, meaning that they did not endorse the act of divorce. The religion does not allow divorce because they believe that men and women get married for a lifetime partnership. Therefore, the clergy allowed the family courts to decide on divorce thereby losing power and authority over divorce.

Divorce

Before the evolution particularly in 1967, the accessibility of divorce was on the same ground between men and women under Family protection law (FPL). The family law was enacted in 1906. The FPL favored husband and wife regarding the divorce since either sex could initiate divorce under the law. Women were given the right to initiate a divorce as well after the amendment of divorce laws where they restricted the rights of women to divorce as a way of compensating the womens on the same (Mir-Hosseini, 2006, p.630). After the evolution, many women were affected because whereas only men were allowed to divorce, women were not. The revolution led to many restrictions including the denial of women to initiate divorce. The tax on mehrieh, which is the marriage portion paid to the wife was exaggerated above what the governments levels and courts only employed male judges meaning that women had no right to divorce. Also, women were not supposed to study certain subjects to prevent them from becoming judges, and they could not go out without hijab. Therefore, divorce was common to most men.

Civil divorce

The FPL had already got rid of the extrajudicial divorce. Before the revolution under civil divorce, both men and women were allowed to initiate divorce under the support of the law, but only under some circumstances such as; refusing to provide the Tamkin; mistreatment in either party; more than five years imprisonment; infertility in both party; and incurable disease.

After the evolution, divorce was only acceptable if the judge had attempted to reconcile both parties without success after which, the court would plan on hearing the case and make the final decision depending on the impact of the case. If both husband and wife agreed to mutually divorce, they would go to the Office of Marriage and Divorce Registration, and in the midst of two witnesses, they would register their divorce (Arjomand, 2009).

Sharia divorces

Historically, challenges concerning family matters especially divorce were governed by sharia courts, and a learned judge (qadi) was supposed to precede it. During the hearings in the court, the judges were expected to conduct the case by the law and the social and moral concerns, so as to ensure harmony among the disputing families.

Under the formula stage, the woman must be described by the word talaq which means you are divorced, in her name, in the first stage known as The formula, of which is optional according to the Sunnite schools. However, the woman may be addressed in other normal ways. When it comes to how the formula should be addressed, the Sunnites differ from the Shiite authorities, stating that it should be in written mode whereas the other party highlights that the husband shouldnt be present but be represented by two witnesses, or both.

For the man, there are four stages; he should have reached the puberty stage (bolug); be of sound mind; make a choice without being unconstrained, and should have the intention of divorcing. A man should not divorce before puberty for it is not allowed even if he is permitted by his guardian but according to Habalite School, such divorce is allowed as long as the man understands its meaning and the phenomenon. If he has a permanent disorder of his mind, it will invalidate the pronouncement of the formula but if the disorder is brought on by drugs or alcohol, then the formula will valid.

In conclusion, the future projection about marriage and divorce has controversial reactions, especially to the Iran community. Historically, the man has been known as the head of the house and can decide to walk out of the relationship anytime he feels like. On the other hand, the woman has no say on divorce, but things have currently changed. Things changed when the legal system encountered a replacement by the sharia law and even today and the facts on who to divorce who has had a resistance future.

References

Abbasi-Shavazi, M.J. and, McDonald, P., 2008. Family change in Iran: Religion, Revolution, and the state. International family change: Ideational Perspectives, pp.177-198.

Arjomand, S.A., 2009. Has Iran's Islamic Revolution Ended?. Radical History Review, 2009(105), pp.132-138.

Mir-Hosseini, Z., 2006. Muslim womens quest for equality: Between Islamic law and feminism. Critical Inquiry, 32(4), pp.629-645.

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