Family Law and Jurisprudence Journal
Year:2019 | Volume:23 | Issue:69 |Papers Count:9

Sexual violence against women has been existed from long ago however the current international community has been silent in this regard. Combating impunity in its general meaning, the international criminal courts gradually have tended to explicit sexual violence against women Court-based Jurisdiction crime contradictory to the common trend. The evolutionary process of this important has facilitated the prosecution of those who seek to disrupt the international legal order. Analyzing the documents of the four generations of these judicial bodies, the present paper addresses the feasibility of international mechanisms to combat impunity against sexual violence, although according to this research, they have not been so much successful in all aspects. It seems that violence against women should be dealt with a great concern of scrutiny in terms of the cases as well as documentation.

Civil code and related Rules (in Iran) have not been substantially regarded pre-contract obligations and its multiple dimensions. Jurists also have not entered the discussion beyond the legal forum. The main issue in this regard is the nature of pre-marriage negotiations as well as its legal effect with regard to the conditions, prerequisites, obligatory conditions, the promise and the subject of the contract, along with the examples of pre-marital negotiations. Since the provisions of the pre-marriage negotiations do not have the same legal value and the guarantee of implementation depends on the manner in which the parties are interacting, the nature of each case should be observed. In addition to observing the position of the parties, the effect of the conditions on the continuity of the contract is determined independently. Therefore, in case of violation against the provisions of the pre-marriage negotiation, performance guarantees such as validity of contract, right of cancellation of marriage and dissolution can be implementing. However, there are alternative solutions to prevent the dissolution of the marriage contract due to breach of negotiations

Using the method of religious ijtihad, this study investigated the issue of concealment and lying about pre-marital matters (friendship and sexual relations before marriage, ex-marriage and the absence of virginity) in the jurisprudential branches about deceit, truth and falsehood. The findings showed that, firstly, claiming the attribute of perfection with the knowledge of its absence is deceit and fraud, and religiously illegal, but concealing an attribute of perfection that the person lacks is not an instance of deceit. Secondly, concealing what is customarily regarded as a flaw in a person; if it is accompanied by a commitment to health, is deceit, but concealing what is an attribute of perfection or concealing what is not considered as commitment, will not be regarded as deceit. Thirdly, any information, deed or concealment which is considered as lying about pre-marriage issues, is regarded as lie and is illegal, and for refinement of the basis of the ruling, dissimulation is as bad as lying and avoidance of it is necessary in marriage.

One of the issues in the family protection law is recognized as the uncontested divorce. The title is applied when the couples agree to get divorced in terms of compromise on children’ s financial and parental support or settlement agreement. They would officially split up when a judicial certificate of divorce is presented at the family court. Although family law is adopted from Sharia but investigations indicates that in spite of its vast extension in family domains, the term has never been considered in the scripture. For the ambiguous nature of this type of divorce, some jurists consider it as Khul’ or Mobarat whereas some are aware of the peculiarity of uncontested divorce nature. This article, investigating the differences between the uncontested divorce and Khul' and Mobarat, believes that the uncontested divorce has independently no common feature with Khul’ and Mobarat. It is neither divorce nor dissolution, however only in the divorce proceedings it follows the divorce.

In revocable divorce, the divorcer can continue living with his wife through reversion during vacuity (waiting term) although the terms and conditions of revocable divorce is mentioned in Islamic jurisprudence, Iran’ s Civil law which is based on Imamieh jurisprudence does not meet the requirements in a complete sense. . With due attention to spread of divorce in society a common problem is disagreement of the couples about reversion and it’ s details. The present research seeking a realistic solution studies the relevant issue in so called Islamic five schools of thought based on Imamieh jurisprudence. It seems that the matter of waiting period in revocable divorce is in most concern for the couples. In addition, the claim of the wife is mostly accepted and her oath is effected in some cases

This paper studies on the juris-legal sanction for non registered signed marriages in Iran. In Iran, marriage is not recognized unless registered legally. For a criminal act to be recognized, the elements of crime should be observed. For this reason the legislator by determining legal punishment considers the failure to register the marriage as a criminal act on which the man would be in charge. Meanwhile, the act of non-registration does not render marriage invalid. This research investigates on the failure to register the marriage and explores the elements of such crime and highlights the problems that such failure causes for women and coming children.

Today the penal intervention in family domain is becoming common in spite of some contradictory views. The advocates believe that the government's to Intervention must be controlled, and penalties should be used as the last resort Penal intervention, taken from criminalization basis, not only confines citizen’ s freedom but also it is contrary to the principles so its implementation needs to be justified. In this regard, the four principles including making harm, building legal patriarchy, moralism and perfectionisicm, all which already exist in criminalization basis, have been raised to justify criminalization. Although, it should be pointed that the principle “ making harm” has the most impact on family criminalization laws rather than other above principles. This paper tries to analyze the instances of Penal intervention in family domain using the descriptive and analytical method, while expressing the principles of criminalization. Hence, after expressing an introduction to the necessity penal intervention the principles, as well as relevant examples, will be mentioned accordingly.