Professor Gabriel Sawma
Before the 1979 Islamic Revolution, matters of personal status in Iran were governed by the Family Protection Law of 1967. At the time of its enactment the law was regarded as one of the most radical reform of traditional Islamic divorce in the Muslim world. The law departed from the classical Ithnai Ashari Shi’a law.
The law of 1967 contained a total of twenty four articles; It raised the minimum age for marriage to fifteen years for girls and eighteen years for boys. It abolished husband’s right to polygamy, mut’ah (temporary) marriage, and divorce outside of the court. Family courts were established to handle cases involving marital disputes.
According to Article 8 of the Family Protection Law, the husband could not divorce his wife without first applying to the court for a certificate of non-reconciliation. The court in turn was required to call for reconciliation between the parties by designating one or two arbitrators to act as intermediaries in order to bring about reconciliation. If no reconciliation is reached, the court will issue a Certificate of Non-Reconciliation. The requirement to produce a certificate of non-reconciliation also applied to a wife who had the power of attorney to repudiate herself if her husband did not abide by the stipulations included in the marriage contract. This article is a departure from Article 1133 of the Civil Code of 1928 which stated “A husband has the right to divorce his wife whenever he desires”, and “a divorce shall take place only when the prescribed words have been expressed and these are at least two just men have listened to the prescribed words when expressed.” (See Article 1134 of Civil Code, 1968). Article 9 placed the responsibility for reaching agreement of maintenance and child custody in the hands of the couple who jointly sought a divorce. If the couple could not reach an agreement, the court would intervene. Article 13 placed the responsibility of setting maintenance and child custody to the court in the event where one party sought a divorce. The court would take the best interest of the child when issuing an order of custody.
Under the Protection Family Law of 1967, men and women had equal rights to divorce. Article 14 specified that if the husband or wife was imprisoned for over five years, or if either of them disappeared, the time frame of five years would constitute a legitimate ground for awarding divorce. Article 15 stipulated that the husband must seek permission from the court in order to take a second wife. The court was required to decide on a case by case basis depending on evidence provided by the husband and the testimony of his wife.
The wife had the right to petition the court for divorce in the event her husband failed to provide maintenance, contracted a second marriage, or failed to treat his co-wives equally. The law allowed these elements to be part of the marriage contract so that the provisions of the contract would appear to be Islamic. The Family Protection Law was amended in 1975, raising the minimum age for marriage to eighteen for girls and twenty for boys, and modifying the financial terms of maintenance provision for divorce wives.
When the Protection Family Law of 1967 was enacted, it met with opposition by various elements of the Iranian clergy, most notably Ayatollah Ruhollah Khomeini, because the law departed from the Ja’fary School of Jurisprudence according to Ithnai Ashar Imamates. Khomeini went so far as to declare void divorces issued according to the new law. Consequently, in 1979, after seven months of the Revolution, a Special Civil Court Act was issued in compliance with the Ithnai Ashar jurisprudence. The new law removed family cases, involving marriage, divorce, annulment, dower, maintenance, custody, and inheritance, from the civil courts and place them in Special Civil Courts presided over by religious judges. It also lowered the minimum age of marriage for girls to nine Hijra (Islamic Calendar) years, reinstated the mut’a (temporary) marriage, and man’s right to polygamy and unilateral divorce.
The 1979 law was questioned by many influential Iranian women the meaning of “Islamic justice” under the new system. Some of women’s concerns were related to the physical young women divorce by their husbands for no apparent reasons and left for destitution. Under pressure from women’s organization, Khomeini introduced a new family law, considered to be the most advanced marriage law in the entire Middle East. The Iranian Civil Code will be the topic of another article.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada. Expert Consultant on Hindu divorce in U.S. courts and Iranian divorce in USA.
Admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for the MBA program at the University of Liverpool, United Kingdom.
Travelled numerous times to Saudi Arabia and the Arabian Gulf States, Jordan, Syria, Palestine, and wrote extensively on Islamic and u divorces, custody of children in USA and abroad.
Speaks, reads and writes several languages including Arabic, English, French and others
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