Comparative Analysis of the Condition of Dividing the Husband's Property in Iranian Law with the Regime of Participation in Acquired Property in Turkish Law

Document Type : Research Paper

Authors

1 . PhD student in private law, Faculty of Administrative Sciences and Economics, Isfahan University, Isfahan, Iran

2 Associate Professor. Department of Private Law, Faculty of Administrative Sciences and Economics, University of Isfahan, Isfahan, Iran

3 . Ayse Nur Kilinc, Assistant Professor, Department of Private Law, Faculty of Law, Haji Bayram Veli University, Ankara, Turkey

Abstract

Introduction
The marital condition of "dividing the husband's property," if signed by the spouses, results in the gratuitous transfer of up to half of the husband's acquired assets during the marital life to the wife. The qualifications raised in this condition, regarding the limits, terms, extent, and method of enforcement, indicate a legal vacuum in the system of spousal property sharing in Iran. In contrast, the financial regime of participation in acquired property in the Turkish legal system, unlike the division condition which is applied only in cases of divorce initiated by the wife, governs the financial relations of the spouses even in non-divorce situations. It only subjects the 
spouses' acquired property to division and protects the division of personal property. Therefore, this financial regime is not evaluated as contradicting the principle of the wife's financial independence in the Iranian legal system, which is a very important point. The question this article is written to answer is: Can the legal financial regime of Turkey be utilized to fill the gaps in the condition of dividing the husband's property? Can the division condition be systematized within the framework of a financial regime, and are the wrongful acts of the husband or wife effective in reducing or rejecting their financial share?
 
Method
In response to the research problem, and considering the comparative nature of the subject, the comparative analysis method has been used. Of course, the authors have moved away from a purely descriptive approach and have pursued a normative approach in their analysis, because their concern has been to find technical normative solutions for the issues and challenges of Iran's family legal system. To explain, a substantive and formal comparative analysis of the division condition with the regime of participation in the spouses' acquired property in Turkish law indicates numerous deficiencies and gaps concerning the financial system governing spousal financial relations in the Iranian legal system.
Findings
It seems that the principle of the wife's financial independence and the wife's lack of financial liability on one hand, as well as the husband's financial obligations on the other hand, could challenge the acceptance of the participation in acquired property regime in Iranian law. By examining the aforementioned challenges, one can argue that at least some authoritative jurisprudential opinions recognize the spouses' will as the source of validity for what is considered an obligation, or deem the principle of the supremacy of the parties' will to prevail over the two aforementioned obstructive principles. Moreover, the contract of partnership (Sharikat) is valid between spouses in Islamic jurisprudence, and spouses can, based on their own inclination and agreement, especially if the two categories of obstacles and challenges mentioned above are moderated, apply the partnership contract to the financial affairs of their shared life. Because in Imamiyyah jurisprudence, the wife has the full right to dispose of her own property, and given that the instances of the husband's financial obligation are subjects of debate and disagreement, it can be accepted that the wife—and in fact the legislator—faces no obstacle to concluding a partnership contract and accepting the system of property sharing. It seems that in today's society as well, custom finds sharing in the spouses' acquired financial share to be fair and acceptable; because women are often employed and, alongside men, bear the economic burden of shared life, but in practice, the resultant assets enter the man's ownership, which contradicts distributive justice, and it is appropriate that the financial regime of participation in acquired property be accepted in Iran's legal system and family laws.
Conclusion
This systematization of the spouses' financial relations based on property sharing, while organizing the spouses' financial relations, will also be effective in strengthening the non-financial relations between spouses. For example, in examining the scope of the financial regime of participation in the spouses' acquired property in Turkish law, we encounter instances that, in addition to clarifying the laws governing spousal financial relations, also delineate family red lines, such as the spouses' misconduct and immoral behavior, for example, committing crimes such as adultery or attempting to kill or murdering the spouse. These red lines are effective in determining the financial share of the spouse who commits them and reduce that share. Furthermore, granting the wife priority over other heirs regarding the right of usufruct and residence in the marital home, as well as the furnishings of the marital home from the decedent's estate, in addition to preventing the sale of the property by other heirs and creditors, can prevent successive harms to the wife and children. The legislator's explicitness in stating the aforementioned instances, while preventing judicial inconsistency and the application of judges' personal preferences, can prevent the occurrence of family disputes. In the authors' opinion, modeling the aforementioned instances from Turkish law would be a very effective step towards filling the legal gaps in the condition of dividing the husband's property.

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Main Subjects

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