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Shahid Beheshti University, Family Research Institute
10.48308/jfr.20.1.145
Abstract
The family is the core foundation of society, and a strong family contributes to a resilient community, while its weakness can lead to societal vulnerability. However, the sacred institution of the family may face challenges. Sharī'a, entrusts the dissolution of marital bonds to the discretion of the husband, but it is by no means a license to act unjustly. If the right to fair and equitable reparation is violated, the divorce is considered arbitrary. The aim of this research is to identify the arbitrary divorce and determine the compensation for its damages in Iran, through a comparative study with the legal systems of Iraq and Algeria. The study is an applied one and utilizes an analytical-foundational research method. The comparative study is conducted in accordance with the importance of existing laws in the mentioned legal systems. The findings of the research indicate that, although the compensation for damages in arbitrary divorce is not explicitly provided for in Iranian case law, a thorough examination of the Quranic verses, traditions, consensus, and reason reveals that compensating damages inarbitrary divorce is consistent with the principles of Islamic law and serves as a preventive measure against the abuse of the right to divorce.
According to the laws of Iraq and Algeria, Once a fulfilled divorce is marked as highhanded, the man is forced to make compensations for the damage incurred by the woman, in addition to her established legal rights. These measures are envisaged as supportive actions to prevent the misuse of the right to divorce and to preserve the rights of the wife. In both legal systems mentioned, divorce must occur with the unilateral will of the husband for damages to be claimable. factors such as the voluntary nature of the divorce, the non-consent of the wife, and the occurrence of harm, as complementary to the primary condition, must also be present.
Salempour, M., & Roshan, D. M. (2024). The Protection of Divorced Rights in the highhanded divorce Damages in the legal systems of Iran, Iraq and Algeria. Journal of Family Research, 20(1), 145-171. doi: 10.48308/jfr.20.1.145
MLA
Mina Salempour; Dr Mohammad Roshan. "The Protection of Divorced Rights in the highhanded divorce Damages in the legal systems of Iran, Iraq and Algeria". Journal of Family Research, 20, 1, 2024, 145-171. doi: 10.48308/jfr.20.1.145
HARVARD
Salempour, M., Roshan, D. M. (2024). 'The Protection of Divorced Rights in the highhanded divorce Damages in the legal systems of Iran, Iraq and Algeria', Journal of Family Research, 20(1), pp. 145-171. doi: 10.48308/jfr.20.1.145
VANCOUVER
Salempour, M., Roshan, D. M. The Protection of Divorced Rights in the highhanded divorce Damages in the legal systems of Iran, Iraq and Algeria. Journal of Family Research, 2024; 20(1): 145-171. doi: 10.48308/jfr.20.1.145
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