نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکترای مطالعات زنان، گرایش حقوق زن در اسلام، دانشکده علوم انسانی، دانشگاه تربیت مدرس، تهران، ایران
2 دکترای حقوق جزا، استادیار، گروه مطالعات زنان، دانشکده علوم انسانی، دانشگاه تربیت مدرس، تهران، ایران
3 دکترای فقه و حقوق جزا، استادیار، گروه مطالعات زنان، دانشکده علوم انسانی دانشگاه تربیت مدرس تهران، ایران
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
Iranian law, like that of many Islamic countries, has accepted the system of financial independence of couples. However, the condition of dividing assets equally, like other conditions in the marriage contract, is completely optional, and its enforceability stems from the principle of pacta sunt servanda ("keeping promises"). Unlike laws in countries such as France, it is not mandatory. Therefore, its implementation requires mutual agreement from the beginning. This research seeks answers to these fundamental questions: What factors cause the ineffectiveness of the equal asset division clause? And what effect does each spouse's misconduct have on family court rulings regarding the application of this clause?
Research Method
This research was conducted using qualitative methods of content analysis of judicial opinions and interviews with lawyers and judges. By examining
more than three hundred judicial documents related to divorce cases and 52 property division cases, the study analyzed judges' reasoning criteria, adopting the principles of dynamic interpretive jurisprudence, legal expediency, and critical discourse analysis of law.
Research Findings
Some attribute the ineffectiveness of the equal division clause to the contract's wording, while others blame its implementation. Regardless of the ambiguity of the term "misconduct" in the text, its interpretation and application depend on judicial discretion. In many cases, what one judge considers misconduct based on personal culture, beliefs, or taste may not be viewed similarly by another judge.
According to family law experts, the equal division clause can deter hasty and unreasonable divorces only when fault in divorce and misconduct by either spouse are considered as the basis for the divorce request. This requires establishing legal procedures to determine the wife's misconduct in court while also accounting for the husband's misconduct when determining the wife's share under the property division clause.
The findings reveal that concealing, transferring, or selling property before filing for divorce is a common practice among husbands to deprive wives of their financial rights. Proving the existence of marital assets is difficult for women, and judges' divergent interpretations of the clause's phrasing ("up to half of the property") lead to inconsistent rulings in similar cases, increasing the potential for judicial bias.
Additionally, in many cases, wives filed for divorce due to unbearable spousal behavior, effectively allowing husbands to divorce without financial consequences. After four decades, it is logical to review and amend the standard marriage contract terms in light of divorce cases and judicial challenges, proposing revisions for judicial authorities to consider. By modifying these terms or adopting fairer judicial procedures—or through new interpretations based on dynamic jurisprudence and legal expediency—greater emphasis could be placed on fault in divorce rather than merely the divorce request itself.
Conclusion
Legal scholars and judges have proposed amendments to either the clause's wording or judicial procedures. Shifting focus from the "divorce request" to "fault in divorce" could improve outcomes. Currently, determining a wife's misconduct is done quickly and without expert input, according to interviewed judges. If this determination—which significantly affects women's financial rights—were made more carefully, with input from family counselors and consideration of underlying factors, including the degree of the husband's fault and misconduct, it would better serve justice and fairness.
کلیدواژه‌ها [English]
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