Legal jurisprudential foundations of the condition of the division of property between the spouses in the marriage contract and its challenges.

Document Type : Original Article

Authors

1 University of Qom

2 Islamic theology and knowledge, jurisprudence and fundamentals of law, Iran, University of Qom, Qom city

10.22091/rcjl.2025.11413.1074

Abstract

The condition of the division of property between the spouses in the marriage contract, which causes it to be divided into half of the property and assets of the spouses acquired during the marriage in the event of divorce - at the request of the spouse and without the spouse's consent - is one of the conditions included in the contract that was officially entered into marriage certificates in Iran in 1983. The purpose of including this condition is to protect the wife's financial rights in situations where divorce occurs at the request of the spouse and without a valid reason from the wife. This research examines the jurisprudential and legal legitimacy of this condition and the challenges facing its implementation with an analytical description and using library and documentary sources. In jurisprudence, the legitimacy of this condition is examined based on rules such as "fulfill the contracts", "the believers are in their terms" and "the principle of authenticity". However, the ambiguity in the concept of "existing assets", the lack of a specific criterion for determining the assets subject to the condition, and the lack of full compliance of this condition with jurisprudential principles such as the theory of "free division of property" and "exemption of liability" are among the jurisprudential challenges to this condition. From a legal perspective, the lack of sufficient enforcement guarantees, the possibility of using the husband or wife condition, the length of the litigation process, and the ineffectiveness of the condition in protecting the wife's financial rights in practice are among the legal challenges to this condition. Research studies show that the division of property condition, despite the legislator's benevolent intention to protect couples, in practice poses serious challenges in the areas of marital legitimacy and effectiveness

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History

  • Receive Date: 30 September 2024
  • Revise Date: 05 July 2025
  • Accept Date: 27 July 2025

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