Journal of Woman and Family Studies
The criteria for the identification of highhanded divorce in the legal systems of Iran, Iraq and Algeria
Document Type : Research/Original/Regular
Authors
1 Faculty of Law, Shahid Beheshti University, Tehran, Iran
2 Family Research Institute, Shahid Beheshti University, Tehran, Iran
Abstract
Divorce, granted by the sacred lawgiver, is controlled by the husband, but it must align with the institution's philosophy to avoid arbitrary divorce. Iran's legal system has not given enough attention to this issue and its criteria. Predicting arbitrary divorce and its criteria, including financial matters, property division, and compensation, is crucial. It also helps in controlling a man's autocratic will.
Studying Quranic verses, narrations, and jurists' rulings reveals criteria for arbitrary divorce: intention to cause harm, loss of legitimate benefits, lack of proportionality between parties' rights, conflicting with the lawgiver's purpose, and contradicting customary norms.
The Iraqi Civil Code considers three criteria for abuse of a right: malicious intent, lack of legitimate interest, and disproportion between interest and harm, guiding the identification of arbitrary exercise.
Algeria's civil law defines personal and objective criteria to distinguish misuse of the right based on intentions and the balance between benefits and harm. Judges differentiate divorce from other arbitrary actions based on these principles.
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