Research Letter of Social Jurisprudence (Interdisciplinary Researches in Jurisprudence/ Researches In Jurisprudence)

Feasibility of agreement between spouses in the effects and decrees of dissolution of marriage contract regarding financial rights from the perspective of Iranian family jurisprudence and law

Document Type : Original Article

Authors

1 PhD student in Islamic jurisprudence and principles of Islamic Azad University, Central Tehran Branch, Tehran, Iran

2 Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran

3 Assistant Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran

Abstract

Dissolution of marriage has legal and jurisprudential effects that are mentioned in their place. But the basic question in this regard is that should these rules be considered as part of the set of mandatory rules or should they be mentioned as supplementary rules? If these rules are mandatory, it is not possible to agree against them, and otherwise, it is possible to agree against them. The findings of the research indicate that in order to determine the possibility of agreement or non-agreement regarding the financial effects of the decline of marriage, one should pay attention to the aspect of the effects being right or ruling; If we consider these works to be right, according to the nature of revocability and the principle of voluntarism, it is possible to agree against the legal and jurisprudential effects of the subject. But if we consider the financial effects of dissolution of marriage as a ruling, we cannot agree against them. On the other hand, one of the characteristics of financial rights is the possibility of its revocation. Matters such as dowry, gifts and alimony are negotiable in viduity period of a revocable divorce or death, according to the principle of voluntarism and absolute legal power of the owner to exercise dominion or control over property. Men and women can agree on its amount and nature or even cancel it. But regarding the rules governing inheritance, it should be said that in the event of a marriage breakdown due to the death of the spouses or Li’an, since these rules are mandatory, it is impossible to agree against them, and the agreement against them is ineffective.

Keywords

Research Letter of Social Jurisprudence (Interdisciplinary Researches in Jurisprudence/ Researches In Jurisprudence)
Volume 11, Issue 1 - Serial Number 21
February 2023
Pages 89-108
  • Receive Date: 16 September 2022
  • Accept Date: 16 September 2022