PROFESSOR GABRIEL SAWMA
MARRIAGE LAW IN IRAN BEFORE THE ISLAMIC REVOLUTION
The Family Law in Iran was codified in 1928 and 1935 as part of the Iranian Civil Code. The law set a legal age requirement for marriage, prohibiting the marriage of girls under 13 and requiring court permission for the marriage of those under 15. In 1931, a separate legislation, known as the Marriage Law (qanun-I izdivaj) was enacted; it made marriage subject to state provisions and required the registration of all marriages and divorces in civil registrars. The law of 1931 expanded the grounds on which women could initiate divorce proceedings and required such actions to be brought before civil courts rather than Islamic sharia courts.
In 1967, the Family Protection Law (qanun-I himaya-I khanivada) was enacted. This law was considered a departure from the traditional Islamic sharia. It abolished the husband’s rights to extra-judicial divorce and polygamy, and increased the age of marriage to 15 for females and 18 for males. The law established special religious tribunals, headed by judges trained in modern jurisprudence. The Family Protection Law was criticized by Muslim clergy, calling it un-Islamic, and was regarded in violation of Islamic shri’a principles.
In 1975, the Family Protection Law was replaced by another law carrying the same title. The new law increased the minimum age of marriage from 15 to 18 for females and from 18 to 20 for males, and provided the courts with discretionary power to decide cases involving child custody, disregarding Islamic sharia provisions. The 1975 law constrained the unilateral power over divorce which was the husband’s under classical Islamic law. Instead, the new Family Protection Law said no divorce was final until approved by a judge. The new law added maltreatment and addiction as a cause for divorce by women. Furthermore, the husband could not register a second marriage without the approval of the first wife, thus limiting men’s rights to polygamous marriages.
MARRIAGE LAW AFTER THE ISLAMIC REVOLUTION OF 1979
Following the Iranian revolution of 1979 under Ayatollah Khomeini (1902-1989), the Family Protection Law was annulled and replaced by the Special Civil Court Act. The new law was entirely enacted in compliance with the Shiite law of Ithnai Ashar (Twelvers), the courts are empowered to deal with a whole range of family issues, including divorce. Khomeini ordered the replacement of all lay judges with clerics who would implement Islamic Shari’a. Judges were left to decide on their own how to apply the broad principles of Shari’a to particular cases.
The situation continued until 1989 when the Divorce Reform Law of was enacted to be applied on Islamic marriage and divorce. That law was amended in 1992 resulting in the creation of a new family code that went further than the 1975 Family Protection Law in protecting women with respect to divorce and custody rights. The 1992 law was amended further in 1993 and 1996 in favor of women. And, by the time Mohammad Khatami was elected President of Iran in May 1997, the law of marriage and divorce was not only equal to the Family Protection Law of 1975 in terms of its provisions for protecting women, but in some cases it exceeded it.
THE CURRENT LAW OF MARRIAGE IN IRAN
Like any other contract, Islamic marriage creates rights and obligations between the contracting parties. It requires an offer and acceptance to marry. The contract includes a provision for the mahr (mehriyya). All marriages, temporary or permanent mus be registered. The new law of marriage and divorce is embedded in the Civil Code of the Islamic Republic of Iran. Article 1103 of the Code states that “husband and wife are bound to establish friendly relations.” Article 1104 says “husband and wife must cooperate with each other for the welfare of their family and the education of their children,” but according to Article 1105, “the position of the head of the family is the exclusive right of the husband.” Article 1104 provides that each party is entitled to inheritance. Article 1085 provides that the wife has right to refuse cohabitation prior to receiving her mehriyya as stipulated in the contract. She has the right to be maintained by her husband (Article 1106); and to control and dispose of her own wealth (Article 1118).
Article 1041, which formerly set a minimum age for marriage at thirteen for females and fifteen for males, was amended in 1982 to prohibit marriages prior to the age ‘majority’, which is nine for girls and fifteen for boys. Article 1041 in the new Civil Code states that: “Marriage before the age of majority is prohibited.” This article is a serious step backwards for the women in Iran because young girls at the age of nine are generally forced into marriage by their guardians. The marriage law of 1931, (before the Islamic Revolution), made it illegal and punishable by six months to two years imprisonment to marry a girl under the age of thirteen (Article 3 of the Marriage of 1931).
The New Civil Code recognized a ‘Temporary Marriage’ (Sigheh) as a valid marriage. This type of marriage allows a married man to have sex with another woman by temporary marriage contract. The previous Marriage Law of 1931 was silent as to the legality of this temporary marriages.
According to Article 1169 of the Civil Code, custody of children remains with the other after the divorce until the girl reaches age of seven and custody of the son only until the age of two. But the mother loses her custody if she remarries (Article 1170), in which case the child is then raised by the parental grandfather of the child (Article 1180).
During the Iran-Iraq War, many husbands died in the battles. Mothers of martyrs have the right to receive their deceased husband’s salary and to keep the children in the mother’s custody.
In 1982, the Majlis (Parliament) added new stipulations to the marriage contract entitling the wife to claim half the wealth acquired by her husband during the marriage (provided she does not initiate the divorce), and enabling her to seek a judicial divorce without the consent of her husband.
Article 1130 of the Civil Code was amended in 1982 to give judges the authority to grant or withhold divorces requested by women. Article 1130 was again re-amended in 2002 to empower judges to issue divorce when women can establish that the continuation of the marriage would cause intolerable suffering or hardship.
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 MBA program at the University of Liverpool, United Kingdom.
Travelled numerous times to Saudi Arabia, Kuwait, Bahrain, Qatar and the Arabian Gulf States, Jordan, Syria, Palestine, and wrote extensively on Islamic and Hindu divorces, custody of children in USA and abroad, and abduction of children to Muslim countries.
Speaks, reads and writes several languages including Arabic, English, French and others
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