Journal of Family Research
Year:2009 | Volume:4 | Issue:16/1 (SPECIAL ISSUE: A CRITICAL REVIEW ON FAMILY SUPPORT LEGISLATION)|Papers Count:9

Family, as one of the most fundamental institutions may play a significant role in the well-being of society; strengthening its pillars would result in the promotion of moral values in society, and weakening its grounds would lead the society to moral deterioration. The parliament by making specific laws, and its executive body, the judiciary, are responsible for the protection of family, especially for its more vulnerable members: women and children. The current paper is intended to analyse the latest governmental proposal for the legislation of polygamy and setting up its conditions by which the matter may be exercised by men.It has to be noted that the issue of polygamy is derived from the Sharia' law, and the legislation of polygamy, in its aims and objectives, must be compatible with that of Islamic law. However, changes in the public perspectives on the issue may influence such legislation by making it more flexible and in accordance with social and cultural ideas of the present society.

The purposes of the bill of supporting of family that have been sent to the government are to cure ambiguity, conflict and gap in the family procedural laws, facilitating the proceedings specially for ladies and infants, strengthening the court dealing with family's disputes and reducing courts' tasks. These purposes have been followed by its articles. Crucial changes like nullifying the necessity of attendance of ladies judges at the family court, changing the manner of referencing to consultation Centers, assigning the families disputes to Counsels for Resolving Disputes, assigning the registering of temporary marriage into the regulation, adding an article about polygamy, providing tax for unreasonable and illogical marriage portions and eliminating the article about fair remuneration and Nehleh, have been made by the government into the bill. These wide and deep changes, not only aren't in the way to reaching to those four purposes, but also in some cases are in the opposite spot of them so that can be said these changes have prevented the bill from reaching to its purposes.

In the present preamble of Family Protection Draft Bill, the ideal and desirable aims are introduced including, 1- fill in legal gaps 2- Clarifying diverse opinions in Family law 3- recognizance of abrogating and abrogated 4- Solving existing legal conflicts 6- Corresponding law with present requirements and necessities. But it seems that the present bill has ignored these aims and this bill cannot attain to its intended aims apparently. Regardless of aforesaid notes, this draft bill have some advantages Requirements: 1. Respecting to statue of woman as a mother and wife 2. Strengthening family foundations 3. Attention to public interests 4. Globalization and family 5. Comprehensiveness 6. non-imprisonment 7. Resolving disputes originated from joint assets 8. Providing a provision regarding women employment 9. Extension of termination of marriage grounds because of new diseases. 10.Restricting termination of marriage when it is curable 11. Not only addiction and drug abuse but also some recent examples of addiction and drug abuse will be a reasonable grounds for a divorce 12. Increasing marriage age 13. authority of virgin major girl on his marriage 14. Some condition as an integral part of contract becomes legal obligations 15. Private court hearing. 

Nowadays, creation of proficient court is necessary in the world. This necessity sometimes results from the importance of claims subject and sometimes comes from complexity of these claims.In addition, in family court, the relationship of courts functions and interest of society, indirect result of this relationship is the prevention of commitment of crimes and social damages, requires devoting of proficient courts. But in Iran's legal system, only has constituted allocated courts.In spite of "Family Protection Draft Bill" has a good points and concept, it isn't sufficient. Because it has ignored basic points.It seems that completing of "Family Protection Draft", specially in family court section, needs more attention to conditions of judges. obligate a presence of women judges, make an advantages for judges of family courts for their difficult job and finally facilitating of necessary instrument and equipment such as arbitration, Assistance, technical counseling. Special police and court decisions enforcer. Paying attention of this elements leads to constitution of proficient court. Such court can create an ideal proceeding in family claims in order to uprooting conflicts between family and strengthening family.

In the principle 23 of suggestive legal article (1386) of the Protection of Family, the husband commitment, for dealing justly between his wives, is defined as one of the conditions of his next permanent marriage. Indeed, it comes from a Quranic verse, "if you fear that you May not be able to deal justly with them (wives) then only marry one free woman" (AI-Nisa', 3), which declare the possibility of polygymy and also limit its quantity. In addition, the justice is the most supreme human accomplishment that is one of the ethical goals of social relationship. In this way, it has been recognized as a rule in marital issues, such as cost of living, and cohabitative time. However, love and emotion like other psychological subjects can't be controlled by human, completely. So, dealing the justice in emotions, which means an exact dividing, is a very hard obligation. Nevertheless, Islamic human studies that understand the sprite as a greater capacity define the possibility of devoting the emotions to several wives, justly. Therefore, dealing of this marital justice is an ethical endeavor, which is implemented by husband, for proving his lovely affection to the wives. So, this kind of commitment is proposed, based on the ethical guarantee.

Purpose: This research investigates marriage portion and its influence on family institution.Methods: This paper is a descriptive analytical research which comparatively studies this issue in viewpoint of lawyer and Islamic Jurist.Conclusion: Taxation on marriage portion is not only originated from Islamic jurisprudence but also it is contrary to famous view of Islamic jurist because parties in this contract (marriage) can agree on marriage portion on the basis of their consent. It seems that government because of encouraging younger person to get marriage and prevention of escalation of marriage portion has provided this provision. It is inferred from civil code, constitution and Islamic jurisprudence that the government is not allowed to inter and interfere in these kinds of issues, therefore article 25 will not be valid for these reasons.Discussion: Moral principal in family, as one of the most important institution, have special status and influence on destination of society members. In order to pass mandatory law, particularly family law, legislator should consider moral and religious rules and costumes. This kind of legislation has negative consequences. In accordance with Article 25, Family Protection Draft Bill, economy ministry must levy tax on unreasonable marriage portion. Regardless of existence of vagueness in this act, passing this act have been resulted in removing the logic order of this Draft Bill, e.g. and some obvious conflicts are revealed; for article 25 and note of article 23. At present, the question which arises is that whether this provision is consistent with legal principal of family law, and in conflict between Article 25 and 23 which article is preferred.

The present study is going to illustrate the necessity of exempting the divorce from the private parties' agreement (control) and the important need of the assertion of legal mechanism to access to the specific legal norm in respect of this divorce. It will be suggested with the purpose of the protection of family institution as a social and ethical entity. The present study is a descriptive analytical research. Accordingly the researcher will describe the characteristics of the legal institution of divorce at first and then it will explain the different legal system's attitude to this respect. Afterward the prerequisites and the condition of the validity of this type of divorces in various times will be evaluated. Finally the ambiguity existed regarding to this issue in different legal system will be examined. A legal system in which the family as a social and ethical institution is protected by law will deal with the dissolution of this entity more sensitively and will prevent the inopportune divorces. Consequently this divorce cannot be leaved to the mere agreement of the married couple. This approach will not regard the dissolution of the family as a revocation of private contractor rescission and it will enter in the public domain. The Iranian legal system seems to accept such an attitude. It has not regarded the mere agreements of married couple as a sufficient condition for the termination of marriage contract.Since a lot of inopportune divorces which have been precipitately and unreasonably occurred in the first years after the marriage will threat the family institution, the appropriate law should prevent the adventitious and unreasonable termination of the marriage. As mentioned above the Iranian legal system, in spite of some vagueness’s, has accepted this approach and has limited the autonomy of the married couple in rescission of the marriage contract.

Family as a natural unit of every society protects its members and supports their needs. The spouses in a family have mutual rights and duties. Disregarding these rights and duties may result in the collapse of this unit. One of the valuable measures in the Draft Bill on Family Protection (1386) that may prevent divorce or at least limit the rate thereof is the establishment of Family Counseling Centers to help the spouses to solve their issues and prevent the escalation of their problems such as to lead to divorce. The purpose of this article is to show the necessity of the presence of a trained physician in the Family Counseling Centers because the cause of more than 50% of divorces is sexual dysfunction of the spouses and the influence of the physical factors, are considerable.