Family Law and Jurisprudence Journal
Year:2021 | Volume:25 | Issue:73|Papers Count:13

Today, the contemporary world has been developed significantly in medical science such as artificial insemination, organ transplants and transsexual change. However, due to the new nature of these developments, they have not yet been able to find their right position in low. Therefore, it is needed more legal reflections on this type of developments. Transsexual change on the people who have physical problems, as a major issue in this type of developments, has been discussed from the past more or less, but in the case of transgender people is not very old therefore, their issues and their problems deserve double attention in the field of law. One of the most important issues of transsexual change is related to the family. Therefore, this study examines the relationships between transgender couples or transgender applicant with their family and their effects on all family relationships from the legal point of view. And this question arises due to the specificity of this issue whether the legislator has considered all of its injuries or following problems and do the rules have necessary accountability for this subject or not? In this regard, current article examines the effect of transsexual change in non-financial relationships of couples and due to legal loopholes in this matter proposes legal solutions.

Family Protection Low approved on 1391/12/1 should be considered as the source of new developments in family lawsuit. One of these developments is the anticipation of the new regulations regarding the procedure of these lawsuits. This low has enacted the specific provisions at different stages of the Family litigation, consideration and issuance of sentence and its execution, that did not exist in previous laws. Other developments include non necessity to follow the court procedures as well as the consideration and issuance of the verdict with the presence and the mandatory verdict of the female advisor judge and also the possibility of enforcing an interim injunction without the need for approval of the head of the judiciary and to pay the possible damages of convicted person. In this article, the innovations of Family Protection Low regarding the family litigation procedure are explained.

The economic dimension in a family provides the basis for the cultural and educational growth of individuals. One of the most important economic aspects in the family is the condition of paying alimony to relatives and the obligation of well-off family members to support poor relatives economically. This research with the analytical-descriptive method studies the legal nature of paying alimony to relatives and compares the conditions of its eligibility in Iranian laws with the British legal systems in this regard. The comparison of Relatives' rights indicates that paying alimony to relatives is very different in the legal system of Iran and the United Kingdom, so that, in the United Kingdom only children are entitled to receive alimony and also there are supporting institutions to offer financial help for children and disable parents in that system. While, in Iranian law, entitles only relatives who are related by blood or kinship. Although, it can be seen commonalities such as customary criteria for determining the amount of alimony, the examples and the components of paying alimony to relatives in these two systems.

Today, the emergence of social developments and the active presence of women along with men have lead to increase the delinquency rates among the women. Due to the main and fundamental role of women in the family and society, the occurrence of anomalies and deviations by them can be cause to decline of society. This research with descriptive-analytical method, have been conducted due to statistical studies on delinquency of women in Mazandaran province in recent years. In response to how the women's delinquency affects on crimes against spiritual integrity, in addition to identifying the characteristics and theoretical foundations of these crimes, its examples have been statistically explained. The results have been shown, firstly, crimes against spiritual integrity are the most common crimes committed by women in this province; Secondly, the role of the family, changing behavioral patterns resulting from social environment interactions, lifestyle, the extent of stimuli and being influenced by the environment, etc., is very effective in increasing the transmission of incorrect behavioral culture among women. In order to reduce and eliminate these crimes, educational recommendations have been suggested in the form of software, life and behavioral skills training, spending leisure time using healthy recreation such as yoga, increasing welfare benefits for working women in stressful environments and so on.

According to the law, upon the marriage, the husband is obligated to pay alimony to the wife and this legal obligation continues until the end of marital relationship, but in some cases despite of divorce and disbandment of marriage relation, the spouse's obligation to pay alimony continues. According to the Article 1109 of the Civil Code, in the case of revocable divorce absolutely and in all circumstances, and in irrevocable divorce and termination of marriage, if the wife is pregnant, alimony must certainly be paid by husband. The purpose of this study is to determine the entitled alimony for pregnant women, which has been done by descriptive-analytical and inferential methods and by collecting data in a library. In this regard two main views have been proposed; some believe the pregnant woman is entitled to receive alimony and others believe that the unborn child is, and they cited to the specific reasons to prove their point of view. The first view was followed by the legislator. Although accepting this point of view is more suitable, but, the interests of the fetus require that an independent legal system be established to guarantee fetal alimony. The alimony which is paid by the husband to divorced woman in the waiting period of Divorce (Oddah) is the effects of previous marriage that still exists. When the alimony is paid to divorcee, she benefits it directly and the unborn child indirectly benefits from it indirectly.

Widespread popularity of flexible criminal attitudes towards the Delinquent Women and planning of the women's differential trial that sometimes is attributed to Feminist criminology has subsequently raised the question that what is Islamic views in this regard. Therefore, by considering the lack of Islam-based theories on this issue, this article by descriptive-analytical method and with emphasizing to rich Islamic principles seeks to prove three following subjects: First, several centuries before the advent of Feminist Criminology, Islamic criminal policy, has focused on the differential trial of women therefore, it has been a pioneer in planning and defending of differential trial; Second, contrary to feminist criminology, the basis of differential trial of women in Islam is not only based on “ their Gender” but also due to requirements of justice and all-round Islamic kindness and different situation of Delinquent women such as, childbirth and their natural and specific condition is considered in Islamic jurisprudence. Third, however the criminal policy of Iran in several cases is corresponding to criminal policy of Islam and there are some example of differential trial in it but, this problem in Iran judicial system is still a long way to reach a desirable situation in criminal policy of Islam and it should be noted in criminal law and criminal policy of Iran.

The family is considered as the foundation of human community and the main center of growth and excellence of individuals and according to the based on the tenth principle of Constitution, all laws and regulations and planning should be designed facilitate family formation and stability of family relations on the basis of Islamic law and ethics. However, like any other institute, there may be differences in it. In these cases, efforts should be made as much as possible to resolve the disputes in a way that does not harm the valuable position of the family. In our laws, which are derived from Shiite jurisprudence, there are capacities that both parties can use them to settle their disputes instead of referring to courts. It should be noted that restorative justice, as a paradigms for the peaceful settlement of disputes, tries to draw a reasonable path to settle disputes by engaging the parties in the direction of solving disputes and creating environment for dialogue and compensation; therefore, paying attention to this approach in addressing family disputes is undeniable necessity. The author in this research, while emphasizing the restoration of family disputes, examines the effective solutions in settlement of family disputes.

Dowry is the necessities of life that are provided by the woman or her family at the beginning of life. There are ambiguities in the dowry that have caused controversy in the judicial decisions. In addition to inequality of judicial decisions, these ambiguities provide a source of conflict for couples and damage the foundation of the family. Some of these ambiguities are the unclear nature of couple's legal relationship regarding the dowry and uncertainty of the husband's legal and criminal responsibility for the deficiency or loss of equipment in dowry claims. The aim of the author is to identify the nature of the dowry, and by analysing the loan contract and permission of conditional possession has concluded the husband's contractual responsibility regarding dowry and subsequently the guarantee of criminal execution in betrayal of trust the husband is responsible regarding the dowry and subsequently the guarantee of criminal execution in betrayal of trust and suggested based on " the rule of Á l-mu'menū n ĕ ndá shorū tī hem” , dowry can be considered as a new contract with special effects and conditions. This research has been done by library method and by the study of documents, Jurisprudential and legal books and the related rules.

There are various customs and teachings in the category of sex education by seeking in religious texts, which show the special care and attention of the holy shari'ah to this issue. By tracing these issues, we find that most of the sexual education teachings in Hadith and jurisprudential books are given under chapters such as: marriage, birth, custody and guardianship, prayer clothes and rules on covering and looking. The existence of such issues shows the importance and concern of this issue in Shariah. Now, in the face of these religious customs, the question arises whether the sexual education of children in these matters is the only permissible and preferable thing? Or it should be said the Shari's concern and attention to the issue of sexual education is so that these category of education are a religious obligation for its custodians? To answer these questions, we have examined two types of narrated arguments along with the opinions of jurists; First, the general arguments that govern the principle of education. The second is the specific evidence that directly relates to sex education. It should be noted that this research has been done in descriptive analysis and by the method of collecting library content.

The right to imprisonment is an option for each party in marriage contract and the couples postpone the performance of their obligation to the performance of another obligation according to this right. The question of whether the wife's imprisonment right is a refusal of general and specific obedience or includes only specific obedience, and also, the effect of the wife's knowledge of the husband's insolvency on her imprisonment right, has been controversial in jurisprudence, and also led to conflicting judicial procedure and the issuance of two votes of unity of procedure. In this article, which is done by descriptive-analytic method, the jurisprudential background and the judicial procedure on this issue and its critique have been studied. The results have been shown the marriage is a contract that creates reciprocal obligations, and it cannot be accepted that the woman without any kind of obedience can request the fulfillment of a man's obligations regarding dowry and alimony, especially where the couple has been declared insolvent by the court. Such an approach would be contrary to the mutual obligations of the parties. The necessity of general obedience of a woman and the assignment of her imprisonment right to special obedience is based on the jurisprudential background of this subject and judicial procedure of the subsequent courts (Tali Courts), and prevents the abuse of the imprisonment. At the same time, the vote of unity of Procedure No. 718 severely limits the scope of imprisonment right, so that any kind of obedience of a woman to her husband can lead to the cancel of the wife's imprisonment right.

The family, as a fundamental unit in society, has been considered and emphasized by the holy sharia of Islam, And in order to maintain the sanctity and stability of the family, rules and laws have been legislated and enacted. The Holy Quran, as a source of revelation, has dedicated many verses to the family and its related rules. What is important is to know the principles and characteristics of the Holy Quran legislative system in the field of family; that the present study seeks to explain it by descriptive-analytical method and based on Al-Mizan interpretation. According to Allameh Tabatabai's statements below the verses related to family rules in the Holy Qur'an, the legal system of the Qur'an has inherent characteristics such as "totality and "permanence". Paying attention to natural requirements, signing the custom of the wise, adhering family laws to ethics, and expressing the interests and corruptions of the rulings are among the prominent features of the Qur'anic legislative system in the field of family.

In the current socio-economic situation, one of the most challenging issues for couples, which sometimes lead to deep problems between them, is the issue of having or not having children and the conditions about it in marriage contract. Providing multiple and various definitions about marriage and lack of consensus on this type of contract, and also the emphasized and repeated orders of the Shari' on the issue of childbearing and reproduction in religious texts have been caused Some jurists consider childbearing as the main reason and the ultimate goal of Shari' for marriage, and they conclude the condition of non-childbearing in the marriage contract is contrary to the requirements and nature of the contract. This paper which is done by descriptive-analytical method, has been studied this issue and responded to this question: What is the status of stipulating non-childbearing condition in marriage contract due to the validity or invalid of invalidated of contract marriage, the condition which seems is opposed to the nature of marriage contract? Finally, after examining the views and existing reasons according to the famous quotes from early Imami jurists about permission of ejaculate and validity of non-sexual condition and also due to the jurists' views stating that a woman can use the temporary contraception tools even without her husband's permission, if they are not harmful to women's health and don't harm marital rights too, And also by relying on the validity of the marriage with sterile, elderly and postmenopausal women have no fertility, it has been cleared that the condition of non-childbearing is not contrary to the nature of the marriage contract; Because the purpose and goal of marriage is to achieve various things and childbearing is only one of the effects of marriage, not just its unique purpose.