Journal of Woman and Family Studies
The Effect Of Corona On Changing the Burden Of Proof Of Insolvency In a Dowry Claim
Document Type : Research/Original/Regular
Authors
1 Assistant Professor, Department of Law and Political Science, Tehran University.
2 Assistant Professor, Refah Faculty, Tehran ,Iran
Abstract
The prevalence of Corona Virus has affected various aspects of peoples lives. For example, in the field of fulfilment of obligations, such as fulfilling the obligation related to dowry, issues are raised. According to the existing general rules, if it is not possible to fulfil the obligation and also, The seizure of property was not possible, The creditor can request the imprisonment of the debtor. In return He can claim for insolvency. As the same way, The wife can ask the court to imprison the husband who refuses to fulfil his obligation.
In these cases, the burden of proving insolvency is not on the husband unless their financial ability is already proven.
The main question in this article is that if we can consider the current unfavourable situation created by corona as a judicial reason and in this way, we can remove the proof of insolvency from the husbands. The answer will be yes and it is compatible with jurisprudential and moral principles.
Highlights
Background & Purpose
Given the widespread outbreak of corona disease and the restrictions imposed on people's lives, the present study aims to address one of the most important and widely used areas of family law, namely demanding dowry; The legislator has stated the necessary points in demanding dowry. However, family law is more tied to the morality and public order of society than any other area, and both in legislation and law enforcement must be done in such a way that the interests of the family and each of its members are best met.
It is clear that when a person's employment is overshadowed and forced to stay home or quarantine, we should not comment like a person in usual conditions about their rights and tasks. The science of law should go along with the changes in society and its needs and act in such a way that the order of society and well-being of citizens can be provided as much as possible. This function in the social crisis where the legislature system certainly can not change along with the daily conditions and react, is the responsibility of legal doctrine and the judicial procedure.
In the meantime, the financial matters are more than any of the problems, and it is basically the root of many other problems as well. The family is a sacred and community-building institution in our legal system. It consists of family members such as the couple and children in which each member has been influenced in some way by the present crisis. In the meantime, financial issues are perhaps the most visible problems, and it is basically the root of many other issues.
Due to the restrictions imposed by the government regarding the closure or limitation of social activities, it has been difficult to fulfill some obligations. The man's dept to pay the dowry is among the examples of financial obligations. This article aims to adjust the existing laws on the burden of proof of insolvency in dowry claims when the economic situation is not favorable because of the covid-19 disease.
Method
The present research is an applied study and seeks to answer the question of whether the current situation resulting from the outbreak of coronary heart disease can change the burden of proof in the claims for dowry using library sources and descriptive methods. In other words, can the current situation be parallel to financial incapacity, and can resorting to this reason relieve a married couple from the burden of proving their insolvency?
Results
A dowry is the amount of money that a man is obliged to give to a woman on the occasion of marriage. The obligation related to dowry is due to the rule of law and does not have a contractual root. For this reason, even without an agreement, the dowry is constant. (Katouzian, 2011, a, p. 131).
The wife is free to demand the dowry from the husband, and whenever the husband refuses to fulfill the obligation to pay the dowry, he can be forced through the court. According to the Law on Execution of Financial Sentences in 2015, if the judgment debtor is sentenced to give any kind of money to the judgment creditor according to the court order, if the subject is specific property, the court itself will take the property and give it to the judgment debtor, and if the return of property is not possible or the subject of the obligation is not a specific property, it is possible to seize the property of the judgment debtor.
If no property is found and attachment is not possible, in that case, the judgment creditor can request the imprisonment of the judgment debtor (Articles 1 and 3 of the Law on Execution of Financial Sentences). In contrast, the insolvent debtor can release him or herself from imprisonment by proving his or her insolvency.
Regarding the question of who bears the burden of proving the insolvency claim, the approach of Law on Execution of Financial Sentences in 2015 has been innovative. According to this law, if the debtor has obtained any property in exchange for debt, he is responsible for proving insolvency. The same is true if the debtor's preceding status indicates his solvency. However, suppose they prove that the property they received was lost, or they did not receive any property at all, or their preceding solvency is not proven. In that case, this is the promisee who must prove the debtor's solvency and financial ability to demand imprisonment.
However, it should be considered that the approach of this law is based on normal conditions, while in the current situation, corona disease has had many economic consequences. As determined by the National Anti-Corona Headquarters, the necessity of restricting economic activities has consequently had significant effects on individuals' economic power. Now, the main question is that in these circumstances, is the burden of proof the same as before? Would a wealthy couple who have economic difficulties in the current situation need not prove their insolvency? Does this situation itself is a sign of insolvency?
Considering the connection of ethics with the field of family law (Mirkhani, 1998, pp. 28, 29) and the nature of the debt related to the dowry, which originates from a moral and legal basis more than the contractual basis (Alimoradi, 2012, p. 122), it seems that considering judicial indications based on the current economic situation to prove insolvency is closer to justice. In other words, the judge in the current situation should not act as usual and ask the couple for a reason to prove insolvency because everyone is aware of the economic crisis and closure or at least the hardships of businesses. For this reason, it is better to consider the current situation as judicial indications. The current situation can lead to the knowledge and confidence of the judge and create judicial indications. (Salarzaei, 2018, p. 71). From the study of existing jurisprudential principles such as hardship (Meshkini, 1999, p. 412) and especially with reference to the moral principles of family law rules and the nature of dowry, considering such a judicial indication seems acceptable.
Discussion and conclusion
In recent years, humans have encountered a pandemic that has been around for almost two years. The prevalence of corona disease has affected various aspects of people's lives; From contracts to family law.
Therefore, what can help in the current crisis is a change in the burden of proof in demanding dowry. In fact, by accepting the judicial indications of economic incapacity in the Corona situation, we release the debtor from the burden of proof of insolvency: in this situation, such a solution is consistent with justice. Thus, the judiciary can pay more attention to the realities of society using the leverage at its disposal and make decisions with a flexibility that requires adaptation to the new conditions of society so as not to violate the legal rules and make appropriate decisions in accordance with current conditions and legal rules while respecting the interests of society, especially the family, ethics, fairness, and justice.
Anyway, what is the subject of the present article is the effect of the corona on changing the burden of proof of insolvency in dowry claims. The central point is that paying attention to the corona crisis and its impact on the current society's economic situation can be a judicial indication favoring insolvent debtors. So, it seems that in the current situation in which all businesses are affected by the observance of health requirements and the advice of the Corona Anti-Corruption Headquarters, such as closures, if we remove the burden of proof from the debtor husband and make the current situation a judicial indication suggesting the truth of what she said about insolvency, it is closer to the right action. This judicial indication can naturally be preferred to the presumption of the preceding status of the husband.
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