Compromising Divorce, Private Domain or Public Domain?

The present study is going to illustrate the necessity of exempting the divorce from the private partie's 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 can not 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 contract or 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 vaguenesses, has accepted this approach and has limited the autonomy of the married couple in rescission of the marriage contract.