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The Legal Regime Governing the Economic Situation of Married Women in Iran. a Dialogical View from Quebec Fateme Zeynodini Supe

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The Legal Regime Governing the Economic Situation of Married Women in Iran. a Dialogical View from Quebec Fateme Zeynodini Supe The Legal Regime Governing the Economic Situation of Married Women in Iran. A Dialogical View from Quebec Fateme Zeynodini Supervisor : Prof. Jean-François Gaudreault-DesBiens Faculty of Law University of Montreal 2019 Table of Contents : ACKNOWLEDGMENT ................................................................................................ 10 INTRODUCTION .......................................................................................................... 11 ABSTRACT ................................................................................................................................. 11 MAIN QUESTIONS AND STRUCTURE OF THE RESEARCH ....................................................................... 16 PROBLEM STATEMENT ................................................................................................................. 17 THEORETICAL FRAMEWORK AND METHODOLOGY ............................................................................. 20 RESEARCH LIMITATIONS AND FEATURES .......................................................................................... 22 PART I: INTRODUCTION TO IRAN’S LEGAL SYSTEM AND ITS MATRIMONIAL REGIME ........................................................................................................................ 26 1 CHAPTER ONE: IRAN’S LEGAL SYSTEM AND THE DIFFERENT SOURCES OF IRANIAN LAW ......................... 27 1.1. History ..................................................................................................................... 27 1.1.1 The pre-Islamic Era ............................................................................................. 28 1.1.2 The Islamic Era .................................................................................................... 29 1.1.3 Contemporary Period (Iran’s Contemporary Legislative Period) ....................... 32 1.1.3.1. The Pre-Revolution 1979 Period.................................................................. 32 1.1.3.2. The Post- Revolution 1979 Period ............................................................... 36 1.2. The Different Sources of Iranian Law ...................................................................... 40 1.2.1. Iranian Codified legislation ................................................................................. 40 1.2.1.1. The Law ........................................................................................................ 41 1.2.1.1.1. The Constitution ..................................................................................... 41 1.2.1.1.2. Legislation .............................................................................................. 41 1.2.1.1.3. Treaties ................................................................................................... 42 1.2.1.1.4. Official Regulations and Directives........................................................ 42 1.2.1.2. Case Law (Jurisprudence) ............................................................................ 43 1.2.1.3. Custom (urf) ................................................................................................. 44 2 1.2.1.4. Legal Doctrine .............................................................................................. 44 1.2.2. Islamic Sources of Iranian Law ............................................................................ 45 1.2.2.1. Quran ........................................................................................................... 46 1.2.2.2. Tradition (Sunna) ......................................................................................... 47 1.2.2.3. Consensus (Ijma) .......................................................................................... 47 1.2.2.4. Reasoning (Aql) ............................................................................................ 48 2 CHAPTER TWO: THE FOUNDATIONS AND SOURCES OF IRANIAN FAMILY LAW .................................. 49 2.1. A History of Iranian Family Law .................................................................................. 49 2.1.1 Iranian Family Law in Pre-Revolution 1979 ........................................................ 49 2.1.1.1. Iran’s 1935 Civil Code .................................................................................... 50 2.1.1.2. The 1931 Marriage Act .................................................................................. 51 2.1.1.3. The 1967 Family Protection Law and its Revised 1975 Version ................... 52 2.1.2 Iranian Family law in Post-revolution 1979 ........................................................ 54 2.1.2.1. The 1979 Special Civil Courts Legislation ...................................................... 55 2.1.2.2. The 1982 Marriage Stipulation by The Ministry of Justice ........................... 56 2.1.2.3. The 1990 Law of Amendment to Some Articles of The Civil Code ............... 57 2.1.2.4. The 1992 Amendment to Divorce Regulations ............................................. 58 2.1.2.5. The 1994 law of Formation General Courts .................................................. 59 2.1.2.6. The 1997 Law of Allocating Some Branches of General Courts to The Family Courts (The Subject of Article 21 of The Constitution) .............................................. 60 2.1.2.7. The 2013 Family Protection Law ................................................................... 62 2.2 Sharia and The Development of Iranian Family Law .............................................. 64 2.2.1 The Islamic Legal System .................................................................................... 66 2.2.1.1. Ijtihad ............................................................................................................ 70 2.2.1.2. Dynamic Ijtihad ............................................................................................. 73 2.2.1.3. The Doctrine of Expediency and Social Necessity (Maslahat and Zarurat) .. 74 .2.2.1.3.1 The Principle of No Harm and No Loss ............................................... 74 2.2.1.3.2. The Principle of Correlation between Sharia and Reason ...................... 75 2.2.1.3.3. The Principle of Avoiding Hardship ..................................................... 76 3 2.2.1.4. Doctrine of Expediency – Conditions for its Application ............................. 77 2.2.1.5. The Islamic Government of Iran’s Use of the Doctrine of Expediency ....... 78 2.2.1.6. The Doctrine of Expediency and Social Needs in Iranian Women’s Rights . 81 3 CHAPTER THREE: DIFFERENT TYPES OF ECONOMIC RIGHTS GIVEN TO THE WIFE IN IRANIAN FAMILY LAW 85 Introduction ....................................................................................................................... 85 3.1 The Economic Rights of Women Under Sharia Obligatory Law ............................. 88 3.1.1 Dowry (Mahr) ...................................................................................................... 88 3.1.1.1. Different Types of Mahr ................................................................................ 92 3.1.1.2. Mahr and the Dissolution of Marriage .......................................................... 92 3.1.1.3. Mahr and Divorce .......................................................................................... 93 3.1.1.3.1. Unilateral Divorce by the Man ............................................................... 95 3.1.1.3.2. Divorce Initiated by the Woman ............................................................ 98 3.1.1.3.3. Divorce by Mutual Consent .................................................................... 99 3.1.1.3.3.1..................................................................................................... Khul’a 100 3.1.1.3.3.2................................................................................................... Mubarat 100 3.1.1.3.3.3............. The 2013 Family Protection Law: Divorce by Mutual Consent 101 3.1.1.3.4. Mahr and the Annulment of Marriage .................................................. 102 3.1.1.5. Mahr and the Death of the Husband ..................................................... 103 3.1.1.4. The Function of Mahr for Women ............................................................. 104 3.1.1.5. The Mahr’s Value ....................................................................................... 105 3.1.1.6. The Mahr and Consummation of the Marriage ........................................ 108 3.1.2. Alimony (Nafagha) ............................................................................................ 110 3.1.2.1. The Meaning of Alimony in Iranian Law .................................................... 111 3.1.2.2. The Characteristics of Alimony in Iranian Law .......................................... 112 3.1.2.3. Alimony and Consummation of the Marriage ........................................... 113 4 3.1.2.4. Alimony and the Dissolution of Marriage ................................................. 115 3.1.2.4.1. The Meaning of Idda (Waiting Period) ................................................ 115 3.1.2.4.2. The Idda period for Divorce and Annulment of Marriage ................... 116 3.1.2.4.3. The Idda Period upon the Death of the Husband ................................. 117 3.1.2.4.4. Women with No Idda Period ................................................................ 117 3.1.2.4.5. Alimony and Divorce ..........................................................................
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