Family Law and Jurisprudence Journal
Year:2017 | Volume:21 | Issue:65|Papers Count:7

The legal guardianship of a child is one of the issues of family law which can create problems for families. Civil law grants guardianship of children exclusively to father and paternal grandfather, while depriving the mother of this legal right. Now, the main question is that whether the current laws regarding legal guardianship of children provide a family needs and in accordance in the best interest of the child and family or not? In the present paper, through studying the current status of families, observing the child’s interests and the duration of mother’s right to custody of a child until it reaches the age of seven, the author believes that if custody be granted to mother and legal guardianship be transferred to father and paternal grandfather, this will cause additional problems in families and consequently be against the best interests of the child. Thus, by considering cultural development of the society and the active presence of women in Iran’s present-day society and also by considering all related aspects, the author suggests that the law should grant mothers the right of guardianship as well, and like child custody, this right should be reserved for both parents. The author believes that this way of distributing guardianship between the father and the mother will lead to the strengthening of the family and it will secure the child’s interests.

In addition to the main aspects and religious of marriage; namely the marriage ceremony takes place and both the husband and wife have the right to the sexual enjoyment of each other, marriage has secondary and financial aspects as well; meaning that when the wife attains this dowry it gives the wife possession of the husband. The challenging question in the above-mentioned discussion is the grounds for the wife’s possession of the dowry which asks the question: does this mean that once the marriage ceremony takes place and the marriage contract is signed, the husband owns the wife’s privy parts and the wife becomes the owner of all the dowry as it is in commutative contracts were each of the parties have complete inalienable possessory rights to possess the property of the other. Or does it mean that only half the dowry becomes the wife’s property at the time of the signing of the marriage and the other half becomes hers after marital intercourse or the other factors becomes the wife’s property. There are three statements on these issues have been raised: the wife’s ownership of all of the dowry property once the marriage contract is signed; the wife’s ownership of half of the dowry property once the marriage contract is signed; and the suspension of payment. The results of this research shows that after examining the jurists’ provisions and terms the authors have found significant proofs for the first statement to be absolute but after reviewing proofs, the two other statements have been considered to be untenable and unjustified.

In the last two decades genetic testing has been taken into consideration as a way of vindicating the claim of parentage; therefore, explaining its scientific and legal validity, is particularly necessary. The most recognized tests on the subject of proving lineage in proving genealogy are analytical testing of blood groups and DNA testing of course the latter has more scientific credible and certainty than others. Due to assurance that comes from testing, this question arises: Is it possible to give a verdict proving genealogy based on the aforementioned test? Because some are inclined to believe this view that it can be useful and as reliable as the reason of the presumption of marriage (Amareye farash). We are also faced with a second question that for whom will the validity and reliability of the result of this genetic test will be acceptable. The findings of the author of this article is that genetic tests, by themselves, cannot be used independently in affiliation proceedings, because they don’t lead to certainty. And if they do, the certainty of the test is different from judge's certain as to the affiliation. On the other hand this test can only show the blood relation not a legal and lawful relation and therefore its only use, can be in some cases like transposable of newborns.

One of the most important discussions in financial relations between the husband and the wife is their ownership of home furnishings. In the course of married life, the couple possess the property placed in their home and this common possession arises from their dwelling in single house. Thus, the couple faces problems when discerning of owner and determining the ownership of property. The important issue that the present article also addresses is that in case of a couple’s disagreement over home furnishings to whom does these furnishings belong? Different views have been expressed by Islamic jurists and legal scholars concerning this issue. It seems that the root of these differences in their views are to be searched in entered news and different understanding of possession rule and local usage. This research with due attention to the famous Islamic jurists, opinion, statute and existing usage in the community draw conclusion that in the issue of couple dispute on the furniture one should judge the ownership of each of them regarding the private use of property and concerning the common property the concentration first should be paid to the community usage on the dowry of women and in absence of usage one should judge the equality of couple in ownership.

In family related issues, having the right to divorce is one of the main questions. In this paper, the effect of refusing to do one’s marital duties in the issuing of the divorce permit by the court is studied from different standpoints of the Jurisprudence. The standpoint of law is considered and explained. Famous Imamiyeh experts (Fogaha) believe that the separation of the parties in marriage is not permitted because of wife's lack of intention to do her duties; but other Sunni religions except Hanafiyeh, believe that not paying the maintenance amount by the husband can dissolve the marriage. In Article 1129 of the Civil Code it states that the husband's refusal to pay the maintenance expenses can lead to the cancelation of the marriage by the wife. The authors of the present paper attempt to mention that the range of this issue of refusal can be developed to other issues and the wife can take measures to request a divorce because refuses to do his non-financial duties.

Undoubtedly, a part of a family’s health and endurance depends on family members' sharing work and responsibilities. Based on religious decrees and established laws, the husband is responsible for supporting the family, including the wife’s. However, there are different views among experts about the quantity and quality of items of obligatory alimony. The reason for this disagreement. The cause of these discrepancy is the uncertainty of the criteria that determines the amount of the. The main question is: "What is the criterion for determining the amount of money for living expenses for the wife?" Some consider it to be the wife's needs based on situation (time and place) as the determining factor of the. Most Shi' ite jurists have considered the social status of the wife as the determining criterion. They believe that the social status of the wife's family must be taken into account even though it might be beyond the wife's current needs or beyond what the husband can afford. Some Shi' ite and Sunni jurists hold the view that the amount and quality of money for living expenses must be set on the basis of the social status of both the husband and the wife. Having examined these different viewpoints and reasons behind them, the present authors have come to the conclusion that the social and financial status of the husband can be considered as the criterion for determining the amount and quality of wife's costs of living, even if it is beyond her status. This view can be effective in dealing with and resolving family disputes.

According to a well-known saying by jurists and consequently according to article 1082, of the civil code, dowry will become the wife’s property of the as soon as the marriage contract is signed; although the wife’s ownership of half of he dowry is uncertain and it will only be established through the realization of some factors. Jurists unanimously agree that the dowry becomes the property of the wife after matrimonial intercourse or natural apostasy of the husband; however, there is no unanimity of opinion regarding the death of husband or wife. So; this question is raised as o whether the death of one of the couple is one condition that can establish dowry. The present paper states different viewpoints of different jurists in this respect, evaluates them and finally prefers the saying of halving dowry by the death of one of the couple before matrimonial intercourse over the others regarding authentic and correct narrations reaching verbiage (Istifazah).