Family Law and Jurisprudence Journal
Year:2016 | Volume:20 | Issue:63|Papers Count:8

Within the framework of the system of family law, one of the issues which is worthy of thoughtful consideration, is the right to cancel a transaction related to an inheritance by the members of a family. The Civil Law (on this issue) has relied on the assertion of Article 445 in which, the overall ruling of the transfer of this right from the bequeathed to the inheritance has been proposed; therefore considering the legal deficency in the ramifications of the above mentioned law, these questions arise that if the members of a family are numerous and they have no unanimity to execute their right how should they deal the problem wheather the attention should be paid to one of the opposition member or to aggregated one. Does a correlativity in the application of an option and the possibility of using it, exist or not? According to Article 167 of the constitution, in these types of cases adherence to reliable jurisprudential opinions must be sought; but due to the discrepancy of opinion among jurists on these issues this paper by relying on the principle and jurisprudential-legal rules and authentic sources, tries to offer a ruling that is in compatible with general ruling and consistent with absolute reasoning.

Article I of the Convention on the Rights of the Child, adopted in 1989, recognizes 18 years of age to be the ranging pole between childhood and adult ratio. At the same time it allows member states to apply lesser age for the definition of the “child” age. Exceptions also exist in some articles such as Article 37 regarding criminal liability, does not allow the death penalty and life imprisonment without the possibility of release in the case of persons less than 18 years. Article 38 concerns the prohibition of countries for recruiting/ employing persons less than 15 years in armed conflicts are examples of such issues where as a certain age has been taken into consideration for children and countries are bound to follow it. The main question in the present paper is what is the age for the basis of the performance of the Member States? In accordance with the prevailing trend in the international community the child's legal age is 18 years of age, but given the existing ambiguities, it is necessary to improve the present situation and clarifying the children's rights, so that, in addition to the clarification of this ambiguity regarding the legal status of the child's age and legal conditions in its ruling, such as issues related to child labor, marriage, participation in armed conflicts and criminal responsibility be examined.

The physical and psychological vulnerability of the wife and the husband’s exercise of authority over the family with the possibility of his abuse of power increase the probability of the commission of crimes against the wife in comparison to the crimes committed against the husband, in the family. The approach to the legislative criminal policy of Iran to support the wife and the criminalization of those behaviors that threaten her rights and character is worthy of thoughtful consideration. The present paper deals with this issue as to what degree the legislative criminal policy of Iran addresses the differential penal support of women vis-a-vis the crimes committed against the wife. While analyzing and investigating the dilemmas of this issue, the author suggests some guidelines. According to criminal categories the results of the study suggest that in the Islamic Penal Code adopted in 1392, as well as the Family Protection Laws, adopted in 1391, no steps have been taken towards the differential penal protection of the wife, and in this law the wife is even deprived of penal protection that is given to the husband. Also, in ignoring some harmful behaviors against his wife, such as failure to pay the dowry, domestic violence, incest, and violent sexual acts, the legislative criminal policy of Iran requires serious review through special criminalization and the intensification of the punishment of the husband; because the factor of "intimacy" is one of the factors of intensification in offenses in crimes against physical integrity and those concerning the domain of the family. Also, the proposed bill for changes, that is currently in the stage of being evaluated, analyzed, and investigated in order to be approved and replaced of the law of changes adopted in 1375, is in need of reform from numerous aspects despite the innovation in support of the wife. The author of this paper offers suggestions in this regard.

Dominence of ethics in the family is a fundamental principle which constitutes the most pivotal issue of the family institution. Serving the wife or mother has no other motive than love and sacrifice and talking about the wages concerning these moral obligations is unfair; but if we want to discuss it from a legal point of view we will be faced with questions that this study attempts to answer. The basic questions in this article are: what is the jurisprudential and legal principle of demand for remuneration during the days of wedlock? What are the existing ambiguities and indifferations in the laws and regulations of Iran in relation to the accrued terms of remuneration? In remuneration there are ambiguities that are raised such as: What duties is the wife legally responsible for? What is the original principle concerning the intention of donation or giving property? How does the violation of the duties of taking care of the spouse that prevent the demand of an allowance mean? The findings of the present research show that the jurisprudential principle of remuneration during the days of wedlock, is a matter of respect for property and action of a muslim. Also Article 336 of the Civil Code and its clause, paragraph A of Clause 6 of the modified version of devorce regulation (adopted in 1371) and Article 29 of the Family Protection Act (enacted in 1391) are the legal principle of the financial institution. Also the majority of jurists consider the wife to be obliged to fullfil certain duties. About the wife’s duties in the home, we cannot refer to the legal norm of giving property without concideration because we might face some other problem.

Nowadays, the amount, and manner of paying and receiving dowry faces many crises; such that the legislator decided to pay attention to the specific characteristics of the subject. so, in order to solve problems and their executive obstacles, by adopting an article in the Family Protection Act of 1391. What is analyzed in this paper is Article 22 of the above mentioned law which has regulated a levy especially about the dowry that has had no precedent in the judicial system of Iran. The imprisonment of the husband for failing to pay the dowry is one of the biggest dilemmas faced by the judiciary and families. It seems that with the adoption of Article 22 of the Family Protection Law and the constructive notice of some judicial policies by the Head of the Judiciary, as well as the adjustment of the adoption of a new law concerning the method of implementing financial sentence, the system imprisonment of the debtors of a dowry will be modified. The main question of the present paper is ‘How is the dowry claimed in case of solvency and insolvency of the indebted, while taking into consideration the law of executing financial sentences (adopted in 1394) and what effect does the above mentioned law have on article 22 of the Family Protection Law? In this paper, in addition to taking a glance at the status of heavy dowries in Imamiya Jurisprudence, an analysis of the background of the adoption and an interpretation of this provision is also discussed.

One of the kinds of marriage that has long been the subject of discussion by jurists, is Muatati marriage. The question is that whether the Muatati marriage can be considered legitimate? Regarding the acceptance or rejection of this type of marriage from the perspective of jurisprudence and law and the method of expressing will in the assumption of its being legitimate there is much controversy among jurisprudents as to its authenticity. Many jurisprudents do not consider Muatati marriage to be legitimate and consider the existence of the terms ‘proposal’ and ‘acceptance’ in the marriage contract to be one of the conditions of the validity of the marriage. Some also refer to the marriage and social system as being ceremonial, but it appears as if none of these can be strong reasons for the creation of a new condition in the marriage contract and consider the entry of the term to be the condition of marriage. The term is one of the ways to express the will in the drawing up of the marriage contract, but other expressions such as writing or actions that indicate an intention, can also lead to the formation of the marriage. That is because, despite the existence that the term, has explicitness in the stating of the purpose and individuals in order to express their opinions, use terms more, but this dominance is not a reason for restriction to word. Therefore, if another explicit distinguished actions is found, there is no reason for the exclusivity of announcing their intention through words. Outstanding acts of will can be any act which is a reflection of the intention of marriage according to social norms.

One of the legal dilemmas of society in recent years is the burdensome dowry. Whether one can ban these types of dowries, in the form of law, is the issue that requires analysis, review and amenability. In legal societies, the tendency to prohibit these types of dowries can be seen to the extent that in the Family Code of 1391, the issue of one hundred and ten gold coins was raised in the first step and regarding the excess thereof, the solvency of the couple was determined as criteria for payment. However, given the vast consensus concerning the impossibility of prohibition and interpretation of the word "Qentar" among the jurists, was faced with serious doubts as to the possibility of forbidding it legally. The author believe that by considering the nature of the dowry in the legislator’s time, that can be deduced from some traditions and the opinions of some jurisprudents, as well as the nature of the dowry at the present time, one can ignore the concept of “Qentar” and thereby prove the possibility of enacting the law for the prohibition of burdensome dowries.

In systems of the resolution of conflict of laws, divorce, as an example of personal status typically follows one of the factors of a certain relashionship such as nationality or domicile. The basic question is whether couples, as two legal parties, can choose the governing law of divorce? Basically, the interest of states and the third parties, leave no room for private agreement between couples in this area; in Iranian law, as well, following of the conflicting law resolution, divorce is considered to be mandatory and non-infringing. Nevertheless, the developments of private international law have lead to the expansion of the sphere of the rule of will in the category of personal status and in many countries give couples permission to select their own favored law from devorce laws. A review of the law in European countries, particularly in light of the Europe Union’s Rights -Act of 2010, as well as the common practice in the courts of the United States, represents a weakening of traditional system and the promotion of rule of will in determining the present devorce law. These developments will have an affect on Iranian law. Such that the Iranian court can, i.e., in the case of foreign nationals, by execution of Direct Renovi regulation first, the Iranian law selected by the couples, can be executed accordingly.