The Limitation of the Authority to Refer to Compensation (Fidyah) in Divorce

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Nouri Hussein; Jafari Ali; Javar Hussein; Osouli Yamchi Mohadeseh

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Journal Paper

Paper Information

Journal: Islamic Journal of Women and the Family Year:2024 | Volume:12 | Issue:2 Page(s): 161-184

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Information Journal Paper

Title

The Limitation of the Authority to Refer to Compensation (Fidyah) in Divorce

Author(s)

Nouri Hussein | Jafari Ali | Javar Hussein | Osouli Yamchi Mohadeseh | Issue Writer Certificate

Keywords

wife's willQ4

limitation of the authorityQ4

compensation (Fidyah)Q4

divorce of KhulaQ4

divorce of MubaratQ4

divorce of compensation (Fidyah)Q4

Abstract

The issue of the limitation of wife's will in referring to compensation (Fidyah) is necessary thanks to its practical prevalence and the problems caused by this condition. Although the sovereignty of individuals' will is respected in the realm of marriage, the interests to protect the family stability and the policy of facilitating the reversibility of divorce requires limitations in the way the authorities are exercised. Among these cases, the way of interfering the woman's will in referring to compensation (Fidyah). The present research was conducted with the purpose of investigating the limitation of the authority to refer to compensation (Fidyah) in divorce, in an analytical-documentary way, and the question whether the limitation of wife's will, in the forms of "revocation of the right to refer to compensation (Fidyah)", "condition of negative legal action" or "peace" and the like, is possible or not, was answered. By referring to the evidence, foundations and analysis of the core of the right to refer and its relationship with the interest of the family, it is clear that in the divorce of Khula and Mubarat, the woman's action in limiting her will in this regard is not effective. After the divorce (until the expiry of the idah), the right to refer also remains, and so the wife's will won't be limited in the interval between the preliminary agreement and the divorce. In the case of the man, the condition of referring to the woman before the woman refers to compensation (Fidyah) is against Sharia and is the requirement of being complete, and as a result, it is invalid. In regard to the divorce of compensation (Fidyah), the reversible divorce or complete divorce and their rulings, are in the hands of the Islamic legislator, and have a ruling aspect and not a legal aspect. Therefore, it won't be possible to limit the will in both stages (in the period of preliminary agreement and after divorce) by the comparison of priority.

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