Analyses private relations in Iranian civil code
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Analyses private relations in Iranian civil code
Abstract
Civil law or private Body of law developed from Roman law and used in continental Europe and most former colonies of European nations, including the province of Quebec and the U.S. state of Louisiana.
The most significant codifications of modern civil law were the French (Napoleonic code) and the German (German civil code). The basis of law in civil-law jurisdictions is statute, not custom; civil law is thus to be distinguished from common law. In civil law, judges apply principles embodied in statutes, or law codes,
rather than turning to case precedent. French civil law forms the basis of the legal systems of The Netherlands, Belgium, Luxembourg, Italy, Spain, most of France's former possessions overseas, and many Latin American countries. German civil law prevails in Austria, Switzerland, the Scandinavian countries, and certain countries outside Europe, such as Japan, that have westernized their legal systems. The term is also used to distinguish the law that applies to private rights
from the law that applies to criminal matters: our means civil law opposed criminal law, I must avowal that Iranian Islamic civil law influenced by French & German code; though our civil code different from them because we have great jurisprudence sources in civil law and
according to the Iranian constitution all code must based on FIFG.
Now I perfect talk about some topics as legacy and will, persons, Guardianship, Nationality, Domicile, Continuously Absent Persons, Marriage, temporary marriage, Dowry and Divorce.
1) LEGACY & WILL
These are the most complicated terms in Iranian Islamic law because they have many outgrowths and related to mathematic, they derivative of KORAN(SUREH:AL'NISA)
Since there are many themes about these topics I prefer to point some of them that related to human and especially women rights.
All of us know there are some things that we respect to them as ownership, means you can do any thing with your property before death or after but under Islamic civil law your decisions for your property after death your limited to one â third of your property, this sentence state in article 843" The testamentary disposition of more than one - third of the estate is not valid, except with the permission of the heirs; and if some of the heirs agree, the disposition applies only to the share of those heirs." I think legal orders shouldn't compel people in their private life.
Exclusion from Inheritance (HUJB) this phrase express in article 886" Exclusion from Inheritance (HUJB) is the name given to the state of an heir who is completely or partially excluded from taking an inheritance owing to the existence of another heir." And have two classes that sate in article 887" Exclusion from inheritance is divided into two classes: First, when the heir is deprived of the inheritance totally, e.g. a brotherâs son is deprived of the inheritance owing to the existence of deprived of an inheritance owing to the
existence of brothers of the full blood Second, when the portion of an heir is lessened from the highest grade to the lowest grade; as for instance
when the share of a husband is lessened from a half to a quarter whenever there are children from the wife; and similarly
when the share of the woman is reduced from a quarter to an eight when ever there are children from her husband."
This order absolutely against humanity also restrict women rights; can you accept your mother share decrease who to give birth to you this sentence express in article 892" Partial exclusion from inheritance of a share occurs in the following cases 1 - Whenever the deceased has children or grandchildren, in that case the parents of the deceased may not take more than one - third of the estate, except in accordance with Articles 908 and 909, in which case it is possible for either of the parents to take, by way of relationship or remainder, more than one sixth; and
similarly the husband is restrained from taking more than one quarter, and the wife from taking more than one - eighth. 2 -
Whenever the deceased has brothers or sisters. In that case the mother of the deceased is
restrained from taking more than one - sixth, provided that:
a - There be at least two brothers, or one brother with two sisters, or four sisters
b - Their father is still alive.
c - She under no incapacity for inheriting, except for reasons of murder; and
d - The brothers and sisters of the deceased be of the full - blood or on the fatherâs side."
Last proposition re legacy & will is woman (girl, wife, mother and sister) heritage now I want explain some articles correlate to this, Article 907 - If the deceased leaves no parents, but has one or more children, the estate will be divided as follows: If the offspring consists of only one, whether son or daughter, the whole of the estate belongs to that child. If there are several children, but all are sons or all daughters, the estate will be divided equally among them.
If there are several children, some being sons and some daughters each son takes twice as much as each daughter.
Article 908 - If the father or the mother of the deceased, or both parents, are alive,
Together with one daughter, the share of each one of the father and the mother will be
One-sixth of the estate; and the share of the daughter will be one - half there of. The
Remainder must be divided among all the rest of the heirs in proportion to the share of
Each; unless the mother comes after someone else, in which case the mother takes no
portion of the remained.
Article 920 - If the heirs of the deceased consist of several full brothers and sisters, or of several half - brothers and half - sisters on the fatherâs side, the share of a male will be twice that of a female.
Article 924 - If the deceased leaves ancestors and brothers and sisters (KALALEH), two - thirds of the estate goes to the heirs which have relationship on the side of the father; and in dividing up this portion the males take twice the portion of the females; and one - third goes to the heirs which have relationship on the motherâs side, and is divided among them equally; nevertheless, if the relations on the mo her âs side consist of only one brother or one sister on the motherâs side, he or she will only be entitled to one - sixth of the estate.
Article 913 - In all the conditions mentioned in this subsection, whichever of the married pair is the survivor takes his or her, share and this share means one half of the estate for the surviving husband and one-quarter for the surviving wife, provided that the deceased left no children or grandchildren; and it means one - quarter of the estate for the husband and one - eighth for the wife if the deceased left children or childrenâs children. And the remainder of the estate is to be divided among the other heirs in accordance with the preceding Articles.
Article 942 - If there be more than one wife, the fourth or eighth part, which belongs to the wife, will be divided equally among them.
Article 946 - The husband takes inheritance from the whole of the effects of the wife; but the wife takes only from the following effects:
A - From the movable property, of whatever kind.
B- From building and trees.
These are most important articles in this background now I explain them.
According to Islamic law men can have 4 wives but women can't, and women share is eighth and if man have 4 wives all of them together have eighth of heritage, moreover the share of a male will be twice that of a female this arbiter also state in KORAN "AL'NISA" it isn't reasonable while jurisconsult said whereas man maintain family name and he supply expenditure of family but I don't think they are good reason since in our society women are participant with men to supply family expenditure.
At the end I think these rules must variation and coincidence with society condition.
2) Persons
Societies wrought persons and they are most important pillar in all societies and governments know person's value for their authority so they try to protect them legislation is the best way to do this; also I must say under Islamic law persons divided into body natural and body corporate; both of them have rights and tasks.
I must remind some of their rights and tasks are state in penal code & civil code; now I want talk about couple personal relation; if husband and wife nationals of the same country their personal relation will be subject to the laws of their country but if they aren't nationals of the same country, this assumption said in article 963" If husband and wife are not nationals of the same country, their personal and financial relations with one another will be subject to the laws of the country of the husband."
Sentence about parents state in Article 964 " Relations between parents and their children are subject to the law of the country of the father unless the only certain parentage of the child is that of its mother, in which case the relations between the two follow the laws of the country of the mother."
Pursuant these articles we realize that woman is subordinate to her husband, as in Islamic belief that women faith are depend on her husband, we know most important things in people life is religious, when Islam said her religious depend on her husband her other things depend to him too. Because in Islamic catechism women haven't volition also before marriage and after, before it her father is her guardian such as [articles 1043,1180,1181,1185 (I will describe them in next part)] and after marriage her husband will be her protector and woman need to his permission [articles 1233, 1117].
3) Guardianship
Under Iranian Islamic civil code guardian whom keep insolvents; and article 1207 specify insolvents" The following persons are considered as under disability and are forbidden to take possession of their property and their pecuniary rights:
1 - Minor children (under age)
2 - Persons who have not adolescent.
3 - Lunatics."
Under age are persons that under age of majority and this age are different about boy or girl about this topic note 1 than article 1210 said "the age of majority for boys is fifteen lunar years and for girls nine lunar years." This one of the most marvelous sentence, difference between boy and girl is six years, though these girls can't deal in their property because she must be 18 years old but their guardians can marriage them, now I ask a question: woman whom 12 years old must buy some things for her family but the civil code
doesn't permission her bargain another question: can she claim her dowry in the court? Whereas she is under
age and forbidden to deal in property and dowry is financial request so her guardian must
complain for her but if she arrive to her right but
court doesn't pay her dowry to her rather give to her guardian.
Article 1208 defines the Persons who have not adolescent "by the words âpersons who have not maturedâ is meant persons whose method of dealing in their property and rights is not in accordance with reason."
Insane whom have problem in his/her mind and can't do normally, article 1213said" A permanent lunatic and a periodical lunatic in his state of lunacy cannot make any intervention whatever in his property and his pecuniary rights even with the permission of his guardian. But judicial acts made by a periodical lunatic during a period of sanity are binding provided that his sanity is established." This article divided insane into permanent lunatic and periodical lunatic.
Article 1233 state "a woman cannot accept guardianship without, the consent of her husband." This is one of the articles that limit women, because under the Islamic thought women are incapable.
4) Nationality
Article 976 state Iranian subjects it say" The following persons are considered to be Iranian subjects:
1 - All persons residing in Iran except those whose foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government.
2- Those born Iran or outside whose fathers are Iranian.
3 - Those born in Iran of unknown parentage.
4 - Persons born in Iran of foreign parents, one of whom was also born in Iran.
5 - Persons born in Iran of a father of foreign nationality who have resided at least one
More year in Iran immediately after reaching the full age of 18; in other cases their
Naturalization as Iranian subjects will be subject to the stipulations for Iranian
Naturalization lay down by the law.
6 - Every woman of foreign nationality who marries an Iranian husband.
7- Every foreign n who has obtained Iranian nationality
Note - Children born of foreign diplomatic and consular representatives are not affected by Clause 4 and 5 of this Article."
Articles 986 & 987 state woman condition under civil code they said: Article 986 - A non - Iranian wife who may have acquired Iranian nationality by marriage, can revert to her former nationality after divorce or the death of her husband, provided that she informs the Ministry of Foreign Affairs in writing of the facts but a widow who has children from her former husband cannot take advantage of this right so long as her children have not attained the full age of 18. In any case, a woman who may acquire foreign nationality according to this Article cannot possess properties except within the
limits fixed for foreign nationals. If she possesses landed properties more
than those allowed in the case of foreign nationals, or if subsequently she comes into possession by inheritance of landed properties exceeding that limit,
she must transfer by some way or other to Iranian nationals the surplus amount of landed properties within one year from the date of her renunciation of Iranian nationality or within one year from the date of her acquiring the inherited property. Failing this, the properties in question will be sold under the supervision of the local Public Prosecutor and the proceeds will be paid to her after the deduction of the expenses of sale
Article 987 - An Iranian woman marrying a foreign national will retain her Iranian
Nationality unless according to the law of the country of the husband the latterâs
Nationality is imposed by marriage upon the wife. But in any case, after the death of the husband or after divorce or separation, she will re - acquire her original nationality
Together with all rights and privileges appertaining to it by the mere submission of an
Application to the Ministry of Foreign affairs, to which should be annexed a certificate of the death of her husband or the document establishing the separation.
Note 1- If the law of nationality of the country of the husband leaves the wife free to
preserve her former nationality or to acquire the nationality of her husband, the Iranian wife who opts to acquire the nationality of the husband and who has proper reasons for doing so can apply in writing to the Ministry of Foreign Affairs and the Ministry can accord her request.
Note 2 - Iranian women who acquire foreign nationality by marriage have not the right to possess landed properties if this would result in the economic dominance of a foreigner.
The provisions of Article 988 so far as they concerns going out of Iran do not apply to the women above - mentioned.
For describe end of article 987 I state article 988 it say "Iranian nationals cannot abandon their nationality except on the following conditions
1 - That they have reached the full age of 25.
2 - That the Council of Ministers has allowed their renunciation of their Iranian Nationality.
3 - That they have previously undertaken to transfer, by some means or other, to Iranian nationals, within one year from the date of the renunciation of their Iranian nationality, all the rights that they possess on landed properties in Iran or which they may acquire by inheritance although Iranian
laws may have allowed the
possession of the same properties in the case of foreign nationals.
The wife and children of the person who renounces his nationality according to this
Article do not lose their Iranian nationality, whether the children are minors of age,
Unless the permission of the Council of Ministers allows them to renounce their
Nationality, and
4 - That they have completed their national military service.
Note A -Those who may venture to apply for the renunciation of their Iranian nationality according to this Article in favor of a foreign nationality must, besides carrying out the stipulations of Clause 3 of this Article, leave Iran within three months. If they fail to do so, the proper authorities will issue Deportation Orders for their expulsion and the sale of their properties. The above - mentioned prescribed period of grace may be extended Subject to the approval of the
Ministry of Foreign Affairs up to a maximum period of one year.
Note B - The Council of Minister may in the course of approving the denunciation of
Nationality by an unmarried Iranian woman, approve of the denunciation of the
Nationality of her children provided that they are without father or paternal grandfather and are less than 18 years of age, or otherwise lack legal capacity. Also her children of less than 25 years of age can denounce their nationality in conformity with their motherâs for denunciation of nationality."
5) Domicile
Article 1002 define domicile "the domicile of every person is the place wherein he lives and where also is the principal centre of his affairs. If the place or residence of a person is different from the principal centre of his affairs, the latter will be considered as his domicile."
And about women domicile article 1005 state" The domicile of a married woman is the same as that of her husband.
Nevertheless where the husband has no known domicile and also when the wife has a
Separate domicile with the consent of her husband or by sanction of a court, she can have a separate domicile."
Because women are under their husband and their husband can elect their wife domicile.
6) Continuously Absent Persons
Continuously Absent Persons define in article 1011 - A continuously absent person whose whereabouts are unknown is a person who has been absent for a comparatively long duration of time and no news whatever have been received from him.
Under article 1029 if woman miss her husband she must wait 4 years and if he return she can go to court and sue divorce article 1029" If a man has been for four years continuously absent with unknown whereabouts, his wife can apply for a divorce The judge will then grant the divorce subject to the stipulations of Article 1023." But this article state she must do article 1023" In cases coming under Articles 1020" The following cases are of those in which a continuously absent person cannot ordinarily be supposed to be alive:
1 - When 10 full years have passed from the date of the last news received as to the life of the continuously absent person and at the expiry of the period his age has surpassed 75.
2 - When a person was included in an armed force under any denomination and
Disappeared during the war and till three years after the conclusion of peace no news is received from him. If the war is not terminated by the conclusion of a peace agreement, the period in question must be reckoned as five years from the date of conclusion of the war.
3 - When a man engaged in a sea voyage was on board of a ship which was wrecked in that voyage and three full years have passed from the date of wreckage of the ship in question and no news is received from him.", 1021" In the case of the last Clause of the above Article if after the expiry of the following periods of time from the date of departure of the ship the latter does not arrive at its destination, or if it has not returned to the
port of departure in the case where it has set out without determined destination and there is no news of its existence, the ship in question will be considered as destroyed
A - For voyages in the Caspian Sea and inside the Persian Gulf, one year.
b - For voyages in the Sea of Oman, the Indian Ocean, the Red Sea, the Mediterranean Sea, the Black Sea and the Sea of AZOF, two years.
c - For voyages in other cases, three years." and 1022" If a person meets the danger of death or disappears in consequence of accidents other than those mentioned in Clause 2 and 3 of Article 1020 or if he has been in an airplane and the latter has disappeared a judgment of his presumed death will only be issued when five years have passed from the date when he
met with the danger of death and during that period no news have been received showing that the man was still alive. ", the court can only issue the judgment of presumed death of a continuously absent person when a notice has
been published for three consecutive times each with an interval of
one month from the other in one of the local newspapers and one of highly circulated papers of Tehran inviting the persons who may have news of the man to convey their information to the court and when after the expiry of one year from the date of the first publication of this notice , the fact that the man is alive is not proved. "
Article 1028 state " The trustee who is to be appointed for the administration of the estate of a continuously absent person whose whereabouts are unknown must pay off the property of the continuously absent person the cost of living (NAFAQEH) of the permanent wife or the temporary wife of the continuously absent person duration of marriage has not yet expired and to whom the continuously absent person has undertaken to pay the
cost of living. He should also pay out of the property of the continuously absent person the cost living of his children. If any difference arises as to the fixing of the amount of cost of living, the court must determine the amount. "
And article 1030 state " If the continuously absent person on returns after the occurrence of the divorce and before the expiry of the period of UDDEHâ time, he has the right to cancel the divorce (RUJU) but if the UDDEH period has already expired, his right will be extinguished."
According these articles wife must stay 4 years after her husband was absent means she can't marriage in this time after it she must keep UDDEH that for death is 4 months and 10 days altogether she must stay 5 years for her husband for respect to him but if wife has absent her husband can marriage the day after it???!!!
A question if there isn't any one to pay NAFAQEH (money for her expenditure such as house, food, clothingâ¦) to her what she can to do? Should she stay? Iranian law doesn't answer to this question.
7) Marriage, temporary marriage, Dowry and Divorce
Marriage in traditional societies as Iran has some complicated rites and both boy & girl must respect to them, also 20 years ago bride & groom can't see themselves before marriage though it exist now in some families; some of girls have imposed marriage or have to marriage when they are under age or they have to marriage with men as their father.
Reason of these problems: 1. most of girls haven't enough knowledge about their rights; 2. traditional society and family 3. Islamic jurisprudence that says girls must marriage before their period. 4. Legal problems: Iranian Islamic law has articles that about girl's marriage.
Now I want explain legal articles about marriage & divorce.
7-1) marriage
Under Islamic law first you must ask from her to marriage this said in article 1034" It is lawful to ask for the hand of a woman to whose marriage there is no obstacle. "
Obstacle to marriage said in articles 1045 up to 1061, I want express these articles then explain them.
Article 1045 - Marriage with the following relations by blood is forbidden, even if the
Relationship is based on mistake or adultery:
1- Marriage with father or grandfather, mother or grandmothers, or to their ancestors to whatever generation.
2 - Marriage with children, or descendants to whatever generation.
3 - Marriage with the brother and sister and their children, or their descendants to whatever generation.
4 - Marriage with oneâs own paternal aunts and maternal aunts and those oneâs father,
Mother, grandfathers and grandmothers.
Under Islamic law mistake in rape means you mistake in people that you rape with him/her or mistake in canon means you don't know rules of rape.
Article 1046 - Foster - relationship is the same as relationship by blood as far as
Impediments to marriage are concerned, provided that:
Firstly - The milk of the woman takes its source from a legitimate conception.
Secondly - The milk is sucked directly from the breast.
Thirdly - The child has at least had full milk for 24 hours (one night and on day) or for 15 consecutive times without taking in between any other food or milk of another woman.
Fourthly - The child has taken the milk before it has reached the full age of two years
(From its birth): and
Fifthly - The milk taken by the child is from the same woman with the same husband. If, therefore, a child takes during twenty - four hours some milk from one woman and some from another, this fact does not debar marriage even if the two women have a common husband.
In the same way, if a woman has a foster - daughter and a foster - In the same way, if a woman has a foster-daughter and a
Foster - son whom she has milked each from the milk belonging to a separate husband,
That son and daughter cannot be considered as foster brother and sister and their marriage is not prohibited for this reason.
Article 1047 - Marriage between the following persons is permanently forbidden because of relationship by marriage.
1 â Marriage, between a man and his mother - in. - law or his grand - mother - in - law of any degree, whether the relationship is by blood or foster - relationship
2 - Marriage between a man and woman who has formerly been the wife of his father or of one of his grandfathers, or of his son or of one his grandchildren even though the
Relationship may be of the foster kind.
3 - Between a man with females of descent from his wife, no matter of what degree no
Exception being made even if the woman is a foster - relation, provided that the husband and wife have already consummated the marriage.
Article 1048 - Marrying of two sisters by the same time by one man is forbidden even if the marriage of each one of them is of temporary nature.
Because when you marriage with woman you have some of relationship with her family that you can't marriage with her sister or mother as under Islamic law you can have 4 permanent wives and unlimited temporary wives "KORAN SURAH AL'NISA AYEH 3"
Article 1049 - No one can marry the daughter of his brother - in - law or the daughter of his sister - in - law unless his wife permits him to do so.
Article 1050 - Every person who marries a woman knowing of the existence of marriage ties binding the wife and of prohibition of his own marriage with that woman, or who marries a woman who has not yet passed the period of âUDDEHâ of divorce or of death, with knowledge of the existence of the âUDDEHâ and the prohibition of the marriage, his marriage will be null and void and the woman in question will definitely and permanently be incapable of becoming the wife of that man.
Under article 643 in penal code punishment for this act is prison six month up to three years" I explain this article in next part"
Article 1051 - The provisions of the foregoing Article will also be applicable in the case where the marriage was solemnized with ignorance of all or some of the facts mentioned in the foregoing Article, and the marriage has been consummated. In the case of ignorance, but where matrimonial relations have not taken place, the marriage will be null and void but marriage between the two does not become permanently prohibited.
Article 1052 - Separation caused by a solemn imprecation (LIâAN) involves a permanent bar to the marriage of the parties concerned.
LI'AN is jurisprudence rule and only man can do it not woman thus they go to court and man stand in right side oh judge and woman stand in left side of judge man says she is adulteress and swear he said true and if he prevaricate GOD agonize him then woman say he is liar and if she whiff, GOD agonize her.
Article 1053 - A marriage contract will not be valid while the party concerned is covered with the pilgrimage garment. If the party concerned marries with knowledge of the fact that such a marriage is prohibited, the marriage will be barred forever.
This occurs when people go to MAKKAH & MADINAH.
Article 1054 - Adultery with a married woman who has not yet passed the period of
IDDEH will entail a permanent bar to the marriage of the parties concerned.
Though under Islamic penal code if anyone adultery with a married woman he condemn to death.
Article 1055 - Sexual intercourse by mistake or by adultery if preceding marriage is
Tantamount to the existence of marriage as far as prohibition of marriage is concerned but cannot cause cancellation of the former marriage.
Article 1056 - One who perpetrates a shameful act on a boy cannot marry his mother,
Sister or daughter.
Shameful act in this article means sodomyh also it must occur before marriage not after, if it occurs after sodomyh marriage is authentic.
Article 1057 - A woman who has been the wife of a man for three consecutive times and has been divorced each time will become unlawful as wife to that man unless she is married by permanent marriage to another man and, after matrimonial relations with that man, separation occurs between them by divorce or cancellation of the marriage or death.
Article 1058 - The wife of a person who has been divorced from him nine times, six of which were revocable divorce, will be illegal as wife to that man for ever.
It so difficult to explain this for you, I trying to show this to you it means a man marriage with woman and divorce her three times in this condition if he want marriage again his wife must marriage with another man in have sexual intercourse with him then he divorce her so she can marriage with her first husband and if repeat once again they must redo this act and they can marriage again but if he divorce his wife three times again he can't marriage with her again until death.
Article 1059 - Marriage of a female Moslem with a non - Moslem is not allowed.
Article 1060 - Marriage of an Iranian woman with a foreign national is dependent, even in cases where there is no legal impediment, upon special permission of the Government.
Article 1061 - The Government can make the marriage of certain Government servants and officials and students supported by the Government with a female foreign national dependent upon special permission.
Moslem woman can't marriage with a non-Moslem man and Iranian woman can't marriage with a foreign man and need to permission of government but Moslem man can temporary marriage with non-Moslem but not permanent.
Marriage condition
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