نشریه فقه و حقوق خانواده
پیاپی 76 (بهار و تابستان 1401)

Explaining the nature of the subjects of rulings in terms of being right or ruling, has several effects in terms of documenting the will of the addressee of the ruling or being limited to the religious address and the requirements arising from it. (Purpose) The issue of divorce, whether it is at the disposal of the couple or it is the subject for the legislator (Shari') to determine in terms of action and omission, requires the determination of the right or ruling in its nature. (Findings) Some believe that divorce by the couple is initially an obscene ruling that in the conditions of necessity, acceptance, sanctity and hatred, it is ordered to act or leave it, and there is not any case that the couple can dissolve with one-sided consideration of personal interests. On the other hand, some people believe that if the supreme interests of the family are not observed, the divorce will never be valid from the point of view of the legislator (Shari') and its validity is a problem, and even if the divorce would be right, the abuse of this right will not be allowed. To be done unjustly and cruelly. But in the third consideration, one can consider a compound nature for divorce and accept that the conflict between right and judgment in the theoretical level does not necessarily lead to the monopoly of natures in practice, because by assuming the divorce would be right and that the conflict between Rights and duties are additional categories, the right to divorce can be considered as an additional category and a compound status, and it requires the obligation to provide for the interests of the family and its criteria are determined accordingly. (Research method) In the present study, which is done by descriptive-analytical method the library information and documents have been researched. (Conclusion) It has been proved that the nature of divorce is in the additional categories and based on the relation that it establishes with the priorities of marital duties, would be limited in actions.

Privacy is a set of beliefs, practices, behaviors, characteristics, and circumstances of any person that is not obvius to public and he or she is reluctant to disclose it and reacts to others' intrusion or supervision. This is one of the most fundamental instances of citizenship rights that must be recognized by people and legislators. The family, as an institution with credits, reputations, dignity, rights and various responsibilities, has a privacy that the public conscience does not tolerate its violation by real and legal individuals. This study with descriptive- analytical method and by collecting data through the libraries has explained the concept, examples and jurisprudential and legal documents of family privacy. The results showed that family privacy consists of spatial privacy, information privacy, dignity privacy and independence of the family institution.

In Iranian law, in case of impotence (sexual incapacity) of the husband, the wife has the right to dissolution of marriage under certain conditions. In addition, it is possible for her to claim the divorce due to embarrassment. Of course, in cases where there are no conditions for exercising the right of termination - such as the delay in termination, knowing before the marriage, the husband becoming infected after intercourse - the dissolution of the marriage is possible only through divorce. The most important difference between the termination lawsuit and the divorce case is that in termination, mere proof of impotence is enough and treatment is not relevant, but in the divorce case, "incurability" is considered; therefore, it is necessary to pass the treatment period. In Sunni jurisprudence and the law of Arab countries, it is important to grant a one-year period or an appropriate period for the treatment of impotence to termination of marriage or divorce. In British law, impotence can be annulled if the couple is incurable or at risk of treatment, or if the couple refuses treatment. In addition, divorce is possible. In this article the ways to treat impotent are medically examined.

Agreements in a consensual divorce have opened up a relatively new topic in family law issues by bringing the consequences of divorce closer to the couple's preferences. Since these agreements are included in the divorce with the consent of the couple, they are effective ways to avoid the tensions resulting from the divorce, but their purpose has been neglected due to the lack of explanation of their nature. Neither a consensual divorce nor the agreements have been studied much in terms of nature. One of the controversial issues over a consensual divorce is finding the nature of this type of divorce. Accordingly, this study is conducted to answer the question of what is the nature of agreements during a consensual divorce. The couple's consent on the consequences of divorce distinguishes this type of divorce from a simple divorce. However, the role of consent is not explained to determine whether the agreements are the only motives in the divorce or are they the conditions of the divorce? This descriptive-analytical study examines the nature of consensual divorce and the agreements obtained from it to determine that these agreements are conditions. So, they follow the provisions of the Civil Code in the matter of conditions, the most important effect of these agreements is the guarantee of the non-fulfillment of the condition.

The institution of the family is important in any society, so its stability guarantees the stability of society. The strength of the family is something that has been considered by the laws (both divine and human). In Iranian law, this issue has been mentioned in several laws, the most important of which is Article 10 of the Constitution, which has introduced the principle of consolidation in family law as a fundamental and guiding principle. The principle of consolidation, as a general legal principle, is the guide of the legislator in formulating laws and judicial procedure in interpreting and applying laws. According to this principle, anything that strengthens the family is accepted, and anything that causes it to falter is hated. Given the importance of this principle in the eyes of the Holy Shari'a, it can be considered the basis of all the principles governing the family; Principles such as structuralism in the family, justice-oriented, purposeful family management, division of labor and cooperation and loyalty. On the other hand, in the field of family, we see conflicts that seem to be unresolved, the imbalance of some rights and duties of couples, which leads to dissatisfaction among individuals and creates tension between them. Proper attention to the principle of consolidation and the principles based on it can be considered as a guarantee of family strength and resolving the mentioned conflicts. It seems that the esteemed legislator of the family and its executors have not paid the necessary attention to this general legal principle and therefore it is necessary to recognize and adopt a more appropriate legislative and judicial approach to this principle.

One of the hidden types of violence against women (VAW) that is linked to the degradation of the environment is ecological violence. Ecological violence refers to a type of violence which is formed as a result of environmental crisis in communities. In this descriptive-analytic article, an attempt has been made to examine the effects of environmental degradation on the increase of VAW from a legal perspective and also with referring to the role of women in preserving the environment. As the environmental degradation may cause to the VAW, the ecological VAW can lead to more serious destruction of environment by eliminating the women as the protectors of the environment and natural resources. Despite the prevalence of this type of VAW, it has not gained appropriate attention in the documents and mechanisms related to the environment and women. It seems that UN formal organizations and states must establish and develop the legal rules as well as provide the serious and effective monitoring mechanisms until to create the way for turning the eye of international actors to visible and hidden aspects of this phenomenon. Also the combating gender inequality and reducing it as the base for environmental injustice which is the main causes of ecological VAW, is a necessary. Furthermore, NGOs related to women rights on one side and those related to the environmental protection on the other side can play a significant role in this regard.

Adoption is a legal relationship that leads to the adoption of a child by a man or a woman as his/ her child; without the child's adoptive parents being the child's real and bloody parents. One of the most important tasks of governments towards children deprived of family blessings, as well as abused children and adolescents, is to provide conditions so that neglected or unaccompanied children, like other children and adolescents, can benefit the special support and care in the shadow of having a family. Unaccompanied children do not have a natural relationship with their adoptive parents and only have a legal relationship, so that there is no confident between them, and this is one of the problems of adoption. Hence, jurists have tried to resolve the problem of the confident of adopted child through religious means such as Mosaharah( the marriage of couples with their relatives) and breastfeeding. But practically the problem remains in many cases; And because of the lack of confident and legislative affinity, the legislature has prescribed marriage of the guardian with the adopted child. This paper with analytic- descriptive methods ties to challenge this type of marriage because this kind of marriage according to the philosophy and the object of legislator in order to protect orphaned and abused children and adolescents, good morals, public order, not meeting the spiritual needs of children and adolescents, opposition to the purposes of Sharia and maintaining the privacy and dignity of the family, etc is not allowed as international conventions have not been accepted such marriage.

In the Iranian legal system, non-financing of the family institution by the head of the family is criminalized as "desertion of alimony". The present study has focused on the evaluation of criminology and punishment of the mentioned crime by descriptive-analytical method and using library resources. Despite the many objections to the criminal response to the  crime of alimony desertion, the findings of this study show that, as a matter of law, the criminalization of this behavior is defensible based on the "refining criminalization model" and the prediction of imprisonment is also based on The basis of the "targeted punishment model" can be justified. However, due to considerations related to the institution of the family, in the position of punishment and execution, it is necessary to resort to "correctional programs" and "use of alternatives to imprisonment". The issues that have been made more and more available to judges with the approval of the Law on Reducing Punishment Imprisonment approved in 1399 and halving the mentioned punishment.

According to the first principle, intentional murderer is sentenced to retribution but in Islamic Sharia, the ruling of retribution depends on certain conditions so that the non-fulfillment of which is regarded as exception of this matter. One of these exceptions is the case that the murderer is the victim’s father. The religious experts have consensus regarding the ruling of non- retribution when the victim’s father is the supposed murderer, but the issue of whether the ruling of non- retribution is specific to the father and paternal ancestor or such exception covers the mother’s side or not is a matter of dispute. The Imamiah Jurists make a distinction between retribution of murderous father and murderous mother. Article 301 of the Islamic Penal Code (approved in 2013) followed the same popular opinion and excluded the victom's murderous father from retribution decree while the murderous mother is sentenced to retribution in the same case. In contrast, Ibn Joneid and Sunni schools of jurisprudence other than Māleki, consider the rule of non- retribution to the murderous mother as well as the murderous father. This article with descriptive and analytical method, aims to prove the theory that the murderous mother like the murderous father is similarly exception from the non-retribution decree.

People are the subject of jurisprudence and in this regard it is important to identify the starting point of their personality. Undoubtedly, before the sperm coagulation, despite accepting some commitments in favor of the extinct fetus, there is no difference in the formation of the personality of individuals and the main differences about the time of onset of fetal personality are after sperm coagulation. In this regard, different theories have been expressed, the number of which reaches twenty. The selection of each of these ideas has many theoretical and practical effects. The main problem is to identify the starting point of competence otherwise it will be futile to talk about rights and duties. In addition, it is essential to identify the competence of fetus to exercise his/ her rights. Although there is no doubt that only the legal representative of the fetus can exercise his/ her rights, but there are some cases where it is not clear who his/ her parents are. In this article, after studying the legal jurisprudence of the Iranian system with an approach to the legal system of the United States of America, it becomes clear that the theory of entering the soul is defensible regarding competence of fetus to be acquired the rights(Ahliyyat e Tamatto'), and regarding the competence of fetus to exercise his/ her rights(Ahliyyat e Estifa) , with considering medical advances, it is necessary to review current regulations and set appropriate rules.

In broad terms, a labor child is referred to a person who is below the legal age and has to engage in an activity/job contrary to her or his desire. Despite the prohibitions on employing children, perhaps for reasons such as the extent of this phenomenon, the network and secret nature of abusers of labor children, the kingship relations between labor children and their abuses,… criminal prosecution of who crime against the children is minor and has not been able to prevent this unfortunate phenomenon as it should be. Thus, this issue necessitates a response beyond the mere criminal prosecution of child labor perpetrators. The present writing draws on a descriptive and analytical methodology and library sources to argue that tackling child labor requires a structural response that considers the responsibility, particularly criminal responsibility, of all persons, institutions, organizations, and administrational authorities somehow involved in this issue. Finally, It has been concluded that a criminal response, albeit a minimal one, can be formulated despite legal gaps in this domain to deal with the failures of legal and natural persons regarding the labor child phenomenon.