نشریه فقه و حقوق خانواده
پیاپی 54 (بهار و تابستان 1390)

Marriage contract is a source of ample rights for couple and paying dowry to wife is one of them. After marriage she can claim her dowry before intimacy (if it is on demand). According to article 1185, if the husband is unwilling to pay she can exercise her right and not respond to her husband's demand. In theological and legal context it is known as the right of lien, but still there exist a great number of unresolved questions, and it remain a controversial issue. It is worthy to note that it has been disputed from legal and jurisprudential stand point. This article also attempts to clarify the questions regarding the mutual relation of spouses and the conditions which nullify this right, and it illustrates clearly its legal inadequacy with reference to legal and jurisprudential scholar's stand point. In view of theologians, marriage contract is a mutual contract (Aghde-Moavezi) or of quasi mutual contract (shebhe Moavezi) which is based on three theories: 1.Both parties, husband and wife have the right of lien. 2. Neither has the above mentioned right. 3. Only the wife is entitling to the right of lien. In spite of all criticism by some jurists and theologians on the right of lien which is absent in legal context; it is an exception to the law, to support the woman's right so that women should not be compared with men. Solvency and insolvency of a husband has no affect on the implementation of right of lien and still he has to pay her legitimate right.

The nature of spouse relationship is based on love and affection, honesty and trust which require the couple not to be alien to each other during and after divorce. Hence the post divorce financial aid has been considered in all legal systems. So unilateral gifts, adequate payment and monthly maintenance has been included in Iran legal system, but practically great challenges remain. In the law of Western and European countries shared property system makes financial settlement possible during divorce. The law regarding monthly maintenance has been enforced in Islamic countries as well as in Western and European countries. The present article while reviewing the legal system of other countries in comparison with Islamic Jurisprudence has offered some suggestions to eliminate the inadequacy in Iranian law in post divorce. To compensate the loss inflicted in post divorce, shared property law during marital life is recommended which can fairly solve the financial trauma of post divorce.

Due to the dramatic development of Islamic societies, women have become socially more active. Regarding the heightened consciousness of the role of women in society, the husband's reaction has great impact on the stability of the family foundation. During the last years the legislators have been prompted to grant women's right and actualize women's demands as well as taking into consideration the opposition of the wife to her husband's job. After ratifying spouses employment rights the present article studies the principle add the limit of the couple's right in opposition to his/her partner's working condition. The study shows that husband's opposition rights are limited to the best interest of family. Nevertheless according to the history of jurisprudence, the wife must obtain permission from the husband before starting a business or travelling. Moreover while the writer studies the limit of husband's opposition to his wife's working condition has codified article eighteen of Family Protection Law. Furthermore it mentions that the elimination of this article in the modified bill is against the new approaches of legislature in changing the procedure of law. Therefore the remaining challenges have to be amended. In the end the writer attempts to clarify the legal impact of execution of law on job prohibition as well as the state of husband's commitment and the loss which has been inflicted on the employer and the third party.

Increasing the amount of dowry after marriage contract is a common agreement between the couple. Although it has been accepted in the society, but still there is a controversy about the legal status of such agreement. This is an issue which has lead to a dispute among religious authorities. This issue was taken to the Administrative court of justice that will accept the increase of dowry in case of arranging an official document in the organization for registration of deeds and property. Moreover the Guardian Council was also inquired about the religious decree of increasing the amount of dowry. They have contradicted the above mentioned issue which is against the divine and legal principles. Finally the public board of Administrative Court of Justice has invalidated this issue. While the legal principles such as freedom of will, contract, and fulfillment of commitment are settled by the mutual agreement of parties concerned. Moreover the legal status of individual contract as a duty of the Guardian Council is not stated clearly in the constitution and also it is not mandatory for the Court of Justice to execute the verdict regarding the above mentioned issue. The present article tries to answer the relevant questions on the basis of the nature of dowry, jurisprudential principles, and its consultative opinion. Some suggestions are also offered.

In Islam the independent economic position of women has been established since the very beginning. Of the great faiths, Islam has been foremost in assigning women exposition of economic independence to remove all sorts of doubts and ambiguities. A married woman is not responsible for financial upkeep of the home. Therefore, the woman in Islam not only enjoys financial independence, but as it is proved in the present article she enjoys more financial independence in the family compared to her husband. Hence according to Iran legal system any property that a woman might acquire by her own effort or inherit as an heirloom or receive as a legacy or gift including her dowry and alimony belongs to her independent of her husband. No one, even legal authority can interfere in her management or administration of these objects. Although If a man (husband) dies, his surviving parents, wife, sons and daughters all share the inheritance. To sum it up taking into consideration the statistics of family expenses shows that women enjoy more financial privileges than the husband. As this research work is done on the basis of library and descriptive research, the hypothesis regarding the financial independence of women is proved with reference to Quranic versus, sayings and authentic sources and current laws in the country.

Compensation of emotional damage is known as a clear example of natural law in all legal systems. If unjust emotional distress inflicted on someone automatically is liable to ask to redress the harm suffered as a result. Violation of every recognized and protected right by the law can be a cause for damage claim. Physical violence, emotional distress, mental damage, threat of social status, and character and identity abuse, all are considered as spiritual damage. The spouses may hurt each other during matrimonial ties or during pendency of partie's divorce. The present article attempts to study the different kind of damages such as: 1. Seeking ways to state a claim. 2. Ways of recovering emotional distress. 3. The evaluation of emotional distress and litigating the claim caused by abuse during matrimonial ties.Finally some suggestions are offered to redress the damages inflicted on the spouse over the course of partie's marriage.

Alimony or maintenance is a regular financial support that is given to a spouse after divorce to meet her reasonable needs. To guarantee the payment of alimony, its concept and acceptability have to be studied form a legal and theological stand point. The present article attempts to illustrate clearly these questions in order to point out what the theological principle behind it is. As it is based on the theological principles, the legislators with the help of the relevant law reach a firm consensus on legal verdict of alimony. Regarding alimony there are some unresolved questions such as: 1. whether a husband has to pay alimony. 2. Should the alimony be paid during temporary or permanent marriage contract? 3. Why a woman refuses to submit to her husband's demand. 4. Whether a husband is obliged to pay alimony or not. The study shows that jurisprudents and jurists have not reached a consensus. As a result the research findings vary. With regard to the "right to be obeyed" (hagh-o-l-ta-a) and the stand point of jurisprudential scholar, the law of alimony can be codified accordingly.