نشریه فقه و حقوق خانواده
پیاپی 37-38 (بهار و تابستان 1384)

Defining the meaning and cause of the application of a judicial divorce, i.e. divorce decreed by the judge, is important in respect to the following items: 1_ The necessity to put the issuance of a decision about a judicial divorce in the form of a court decree. 2_ When the spouse is avoiding fulfilling the court decree on a judicial divorce for a period specified in the law defining the period of the validity of non-compatibility certificates, ratified in 1376. 3_ When the paragraphs a and b, relating to the way of fulfilling the court decree, of the law defining the period of the validity of certificates, issued on the spouses’ impossibility to live in concord, are not taken into consideration.The writer believes that the judicial divorce is a divorce that the judge puts into effect on the authority of the man who is unwilling or unable to fulfill his duties incurred through marriage. Both divorces by the man’s request and those on mutual agreement belong to the framework where certificates stating the lack of any chance of a continued marital life are required. The court interfering in divorces of these kinds is only on the purpose to rectify between the spouses. It is also possible to delay the issuance of divorce by way of judicial procedures. Therefore, they are not considered as judicial divorces, or divorces decreed by the judge.Similarly, a divorce applied by the woman on the power of attorney from the man as a proviso, is not a judicial divorce either on the basis that the role of the judge is only limited to the fulfillment of the conditions and rights given to the woman by way of the power of attorney, notwithstanding that the court’s interference has to be, by its nature, in the form of a court decree.In contrast, in the divorces taken up in articles 1029, 1129 and 1130 of the Iranian civil law, the court obligates the man to a divorce. In case he then opposes, the court carries out the divorce, i.e. the man’s right to divorce given to the woman by way of the power of attorney from him. Such a divorce exemplifies a divorce on the judge’s order.