Akhlāq-i zīstī i.e., Bioethics Journal

Abstract

Background and Aim: Marriage contract features a special nature amongst the contracts and it has been interlaced with the rights and ethics from long ago and this same issue has made the interpretation of the regulations related thereto especially difficult. Lien rights which are usually applied in the swapping contracts have encountered various interpretations in marriage contract. On the one hand, the husband’s insolvency or solvency and their effects on the lien rights are controversial and, on the other hand, heavy marriage portions in terms of validity or invalidity. And, it is here that the Islamic ethics resolve the problem for there would be neither any news of heavy marriage portions and insolvency in case of the existence of financial and nonfinancial properties nor any misuse of the lien rights if reference is made to the Islamic norms. 

Materials and Methods: The present descriptive-analytical research has been carried out through the use of the library resources.

Ethical Considerations: The present article has been authored in adherence to such principles as content originality, fairness and trustworthiness.

Findings: The findings signify that there would be no sign of heavy marriage portions in case of adherence to ethics and resorting to the regulations and conduct way of his highness the great prophet of Islam (may Allah bestow him and his sacred progeny the best of His regards). Emphasis has been placed in Islam on easy marriage and Islam opposes strictness for marriage and setting of heavy marriage portions; on the other hand, no lien right is created for the wife through the paying of light marriage portions. However, we are unfortunately witnessing the misuse of the aforesaid rights from the side of the couples in the judicial procedures and sentences and this is not consistent with our religious and ideological regulations.

Conclusion: The result of not adhering to the ethics in determining the marriage portions would be disagreements between the couples and the intensification of these discrepancies in the courts; thus, in cases that the husband’s insolvency has been sentenced and its installments are being paid, the wife should keep on performing her marital life’s duties like the husband; in case that the husband again refrains from the paying of the installments, the wife can resume her lien right. Moreover, the procedural unity sentences no.708 and 718 pay insufficient attention to the status quo of the society and they have been issued without taking proper advantage of the jurisprudential notions that are more compatible with the current status and nature of marriage contracts. As for the heavy marriage portions, as well, that cannot be essentially and habitually paid by the husbands, an invalidation sentence should be issued considering the maxim of the contracts’ invalidation due to the parties’ being excused from the fulfillment of their contents, intellectuals’ way of conduct and haphazard nature of the marriage portion’s agreement.

Please cite this article as: Kheirkhah H, Naghibi SA, Musavi SMS. The Role of Ethics in Determining Heavy Marriage Portions and Creation of Lien Rights Based on Judicial Sentences. Bioethics Journal, Special Issue on Citizenship Rights, Autumn 2018; 391-405.