论文部分内容阅读
As soon as marriage takes place in due form, relations of matrimony will exist between the marrying parties and rights and duties of husband and wife will be established between them. During married life, the spouses have some common duties regarding each other in such a way that both of them are obliged to fulfil these duties. Some conjugal duties are also exclusive, thus in present research, the most important conjugal duties are investigated in three parts of common duties of spouses and exclusive duties of each of husband and wife:
(A) Having common dwelling:
This is the main aim of marriage, family formation and being together.
(B) Having good behaviour:
Husband and wife should have good behaviour. Good behaviour or good manners of husband and wife are on the basis of social traditions, habit and custom.
(C) Having cooperation in strengthening family’s foundations and rearing children:
Article 1104 of the Civil Code prescribes for spouses to cooperate for strengthening of family’s foundations and rearing of children. One of the most important aims of marriage is collaboration in life and cooperation of husband and wife for prosperity and welfare of family.
(D) Loyalty of spouses:
In Civil Code, there is no reference to loyalty duty of husband and wife, but it should be noticed that the legislator’s silence is due to the fact that it is an evident duty. In addition to common duties of spouses, each of them has some exclusive rights and duties.
The position of head of the family is among the non-financial duties of husband. Of course, there are some conditions for heading of the family by husband among which it can be referred to having ability and moral competency and capacity. But the exclusive duties of wife include being condescended (general or special) and living in the husband’s dwelling.
have been raised in several chapters (including marriage, divorce and regulations regarding children), the use of the term “family law” as one of the most important issues of private law, does not have much background in Islamic countries, and its regulations in these countries are usually discussed under the topic of “Personal Status”4. In some new sources of jurisprudence, it is recommended to gather issues relating to family under the topic of“Personal Manners and Conducts”.5
A considerable number of Quran verses and various parts of traditional6 sources7 are allocated to family regulations and issues such as the importance of family, the aim of family formation, family management, dowry and alimony, kinds of divorce, the rights of divorced woman, and also the rights of children.
The issue of Family Law due to various reasons is intermixed with social, ethical and religious issues. The nature of family and the relations between parties, more than legal laws, depends on ethical and religious instructions and therefore it cannot tolerate the excessive involvement of government and positive laws8.
Man and woman gained two legal titles after family formation and then having child: being husband and wife, father and mother. The regulations for establishing or dissolving relations between husband and wife and its impressions which are mainly based on the marriage contract, are different from the regulations governing relations between parents and children which include imperative regulations and protective rules of the legislator or lawgiver (Islamic Law)9.
After codifying new laws in Iran, in 1931-1932 (1310 by solar calendar), the law of marriage was enacted in 20 articles which is mostly about the formal regulations of family relations such as the necessity to register marriage and divorce in public notaries and the issues of alimony and custody. According to the Islamic law of courts (enacted in the same year), the claims regarding marriage and divorce, as well as refusal of husband from paying alimony were investigated in Islamic law courts with presence of fully qualified jurist of Islamic jurisprudence. From Feb.-Mar.
A. Duties of Spouses regarding Each Other from the Viewpoint of Quran
The Holy Quran, in many of its verses, refers to marriage cases and family issues and the fact that husband and wife are like a cloth which covers each other and brings for each other rest and compassionate. Concerning the duties of spouses regarding each other, chapter two of Quran, Al-Baqara, verse 228 totally refers to this issue that each of the spouses has some duties regarding the other party too. As it has been stated at the end of this verse: “and they have rights similar to those against them in a just manner, and the men are a degree above them and Allah is mighty, wise.”
To explain this verse, one can say: considering the extensive differences between physical and spiritual power of men and women, management of the family is under the obligation of man and its deputyship is under the obligation of woman but this difference will not impede a group of women to be superior to many of the men as regards spiritualities, knowledge and piety.
B. Identifying Common Duties of Spouses
For some non-financial duties, both husband and wife are made responsible; and some of the duties are exclusive to husband and some others are exclusive to wife. Non-financial duties entrusted upon the spouses by legislator include: 1. Common Dwelling
The main aim of marriage is forming a family and being together and it’s the source of major part of comfort and emotional relation and reaching this aim is not possible with husband and wife being separated from each other. Thus, the man is obliged to provide proper housing for his wife and the woman is obliged to live in a house provided by her husband.17
agreement;40
(2) The domicile of the wife is basically the same as that of her husband;41
(3) Husband has natural guardianship of children.42 Guardianship and custody are different from each other. If in the discussion of custody, the custody of child is given to mother, it does not mean that she is guardianship of child too;
(4) He is responsible for the maintenance of family;43
(5) He basically has power to choose dwelling;44
(6) Wife should condescend;45
(7) He can prevent his wife from occupations which are incompatible with the interests of the family.46 Of course, it is verified vice versa for the wife;
(8) The right to divorce: according to article 1123 of Civil Code, a man can divorce his wife whenever he wants. Today, many of the divorces are on the request of woman and in this case she is not liable to get wages for housework. But if a man requests for divorce, he should pay the dowry, wages for housework and cost of maintenance of his wife during the period of living separately too.
C. Sanctions of the Husband’s Duties
In case the husband refuses to fulfil his duties, either regarding those which are common with that of his wife, such as good behaviour and strengthening family’s foundation, or regarding those which are exclusive to him, the wife can request to compel her husband to divorce based on article 1130 of Civil Code.
From the discussions mentioned above, it becomes totally clear that, in a marital relation, both parties have some rights and duties and both of them are equally accountable for the heavy responsibility of joint life. Even it can be claimed that, regarding non-reciprocal duties, that is exclusive duties, in return for existence of some duties for the husband, there are some duties for the wife.
In case each of the spouses fails to fulfill his/her duties entrusted upon him/her as a result of marriage, the other party can refer to the court and request to compel the party who refuses, to fulfill his/her duties. The point which should be considered is that the duty of husband to pay alimony(regarding financial duties) is among the cases which, whenever it is not possible to compel him to pay, should be fulfilled by confiscating his properties and selling them unless he is not able to pay it. But other duties of the spouses, such as good behavior, strengthening family’s foundation, obedience of woman to her husband and the likes, depends on them and are based on sincere interest and kindness, and in many cases the desired results cannot be achieved by direct or indirect compulsion for fulfilling them. In this case, the law, regarding sanctions of marital duties, provides suitable solution for each of them.
(A) Having common dwelling:
This is the main aim of marriage, family formation and being together.
(B) Having good behaviour:
Husband and wife should have good behaviour. Good behaviour or good manners of husband and wife are on the basis of social traditions, habit and custom.
(C) Having cooperation in strengthening family’s foundations and rearing children:
Article 1104 of the Civil Code prescribes for spouses to cooperate for strengthening of family’s foundations and rearing of children. One of the most important aims of marriage is collaboration in life and cooperation of husband and wife for prosperity and welfare of family.
(D) Loyalty of spouses:
In Civil Code, there is no reference to loyalty duty of husband and wife, but it should be noticed that the legislator’s silence is due to the fact that it is an evident duty. In addition to common duties of spouses, each of them has some exclusive rights and duties.
The position of head of the family is among the non-financial duties of husband. Of course, there are some conditions for heading of the family by husband among which it can be referred to having ability and moral competency and capacity. But the exclusive duties of wife include being condescended (general or special) and living in the husband’s dwelling.
have been raised in several chapters (including marriage, divorce and regulations regarding children), the use of the term “family law” as one of the most important issues of private law, does not have much background in Islamic countries, and its regulations in these countries are usually discussed under the topic of “Personal Status”4. In some new sources of jurisprudence, it is recommended to gather issues relating to family under the topic of“Personal Manners and Conducts”.5
A considerable number of Quran verses and various parts of traditional6 sources7 are allocated to family regulations and issues such as the importance of family, the aim of family formation, family management, dowry and alimony, kinds of divorce, the rights of divorced woman, and also the rights of children.
The issue of Family Law due to various reasons is intermixed with social, ethical and religious issues. The nature of family and the relations between parties, more than legal laws, depends on ethical and religious instructions and therefore it cannot tolerate the excessive involvement of government and positive laws8.
Man and woman gained two legal titles after family formation and then having child: being husband and wife, father and mother. The regulations for establishing or dissolving relations between husband and wife and its impressions which are mainly based on the marriage contract, are different from the regulations governing relations between parents and children which include imperative regulations and protective rules of the legislator or lawgiver (Islamic Law)9.
After codifying new laws in Iran, in 1931-1932 (1310 by solar calendar), the law of marriage was enacted in 20 articles which is mostly about the formal regulations of family relations such as the necessity to register marriage and divorce in public notaries and the issues of alimony and custody. According to the Islamic law of courts (enacted in the same year), the claims regarding marriage and divorce, as well as refusal of husband from paying alimony were investigated in Islamic law courts with presence of fully qualified jurist of Islamic jurisprudence. From Feb.-Mar.
A. Duties of Spouses regarding Each Other from the Viewpoint of Quran
The Holy Quran, in many of its verses, refers to marriage cases and family issues and the fact that husband and wife are like a cloth which covers each other and brings for each other rest and compassionate. Concerning the duties of spouses regarding each other, chapter two of Quran, Al-Baqara, verse 228 totally refers to this issue that each of the spouses has some duties regarding the other party too. As it has been stated at the end of this verse: “and they have rights similar to those against them in a just manner, and the men are a degree above them and Allah is mighty, wise.”
To explain this verse, one can say: considering the extensive differences between physical and spiritual power of men and women, management of the family is under the obligation of man and its deputyship is under the obligation of woman but this difference will not impede a group of women to be superior to many of the men as regards spiritualities, knowledge and piety.
B. Identifying Common Duties of Spouses
For some non-financial duties, both husband and wife are made responsible; and some of the duties are exclusive to husband and some others are exclusive to wife. Non-financial duties entrusted upon the spouses by legislator include: 1. Common Dwelling
The main aim of marriage is forming a family and being together and it’s the source of major part of comfort and emotional relation and reaching this aim is not possible with husband and wife being separated from each other. Thus, the man is obliged to provide proper housing for his wife and the woman is obliged to live in a house provided by her husband.17
agreement;40
(2) The domicile of the wife is basically the same as that of her husband;41
(3) Husband has natural guardianship of children.42 Guardianship and custody are different from each other. If in the discussion of custody, the custody of child is given to mother, it does not mean that she is guardianship of child too;
(4) He is responsible for the maintenance of family;43
(5) He basically has power to choose dwelling;44
(6) Wife should condescend;45
(7) He can prevent his wife from occupations which are incompatible with the interests of the family.46 Of course, it is verified vice versa for the wife;
(8) The right to divorce: according to article 1123 of Civil Code, a man can divorce his wife whenever he wants. Today, many of the divorces are on the request of woman and in this case she is not liable to get wages for housework. But if a man requests for divorce, he should pay the dowry, wages for housework and cost of maintenance of his wife during the period of living separately too.
C. Sanctions of the Husband’s Duties
In case the husband refuses to fulfil his duties, either regarding those which are common with that of his wife, such as good behaviour and strengthening family’s foundation, or regarding those which are exclusive to him, the wife can request to compel her husband to divorce based on article 1130 of Civil Code.
From the discussions mentioned above, it becomes totally clear that, in a marital relation, both parties have some rights and duties and both of them are equally accountable for the heavy responsibility of joint life. Even it can be claimed that, regarding non-reciprocal duties, that is exclusive duties, in return for existence of some duties for the husband, there are some duties for the wife.
In case each of the spouses fails to fulfill his/her duties entrusted upon him/her as a result of marriage, the other party can refer to the court and request to compel the party who refuses, to fulfill his/her duties. The point which should be considered is that the duty of husband to pay alimony(regarding financial duties) is among the cases which, whenever it is not possible to compel him to pay, should be fulfilled by confiscating his properties and selling them unless he is not able to pay it. But other duties of the spouses, such as good behavior, strengthening family’s foundation, obedience of woman to her husband and the likes, depends on them and are based on sincere interest and kindness, and in many cases the desired results cannot be achieved by direct or indirect compulsion for fulfilling them. In this case, the law, regarding sanctions of marital duties, provides suitable solution for each of them.