Volume 18, Issue 59 (4-2024)
MLJ 2024, 18(59): 113-127 |
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Karimi G, Hamzeh E, Jafari M. A Comparative Study of Wife's Hardship and Difficulty in Iranian and American Law (with a Look at Husband's Incurable Diseases). MLJ 2024; 18 (59) :113-127
URL: http://ijmedicallaw.ir/article-1-1774-en.html
URL: http://ijmedicallaw.ir/article-1-1774-en.html
1- Department of Private Law Yasuj Branch, Islamic Azad University, Yasuj, Iran.
2- Department of Private Law Yasuj Branch, Islamic Azad University, Yasuj, Iran.Department of Private Law Yasuj Branch, Islamic Azad University, Yasuj, Iran.
2- Department of Private Law Yasuj Branch, Islamic Azad University, Yasuj, Iran.Department of Private Law Yasuj Branch, Islamic Azad University, Yasuj, Iran.
Abstract:
Background and Aim: The main purpose is the comparative study of hardship and difficulty of the wife in Iranian and American laws (with a view to the incurable diseases of husbands in Iranian law).
Method: The method of this research is library and field. In this regard, in addition to referring to the sources available in books and articles, with an analytical approach, the legal aspects of the subject have been investigated from the perspective of two legal perspectives.
Ethical Considerations: In all stages of writing the present research, the originality of the texts, honesty and trustworthiness have been observed.
Results: Jurisprudential rules are propositions that are widely used in various aspects of jurisprudence and have a significant impact on the final derivation of rulings. In addition, these rules are the basis of many related laws and regulations in Iran. The rule of difficulty and hardship is one of these rules, by referring to it, if the compliance of a ruling is difficult or accompanied by a lot of hardship for the obligee, that ruling is lifted and compliance is not necessary. Today, social relations at the international level are widely Increasingly, the creation of marriage between nationals of countries with different cultures, customs, laws and regulations and specific family issues arising from it will not be excluded from this issue. Since private international law is the reflection of the domestic private law of countries in the international context, while discussing the difficulty and embarrassment in Iran's domestic law, reference is made to the contents of the relevant provisions in international law, especially the American law and in case We will reconcile the necessity of customs and traditions, social values and family regulations of these two countries.
Conclusion: In Iranian law and civil law, in Article 1133, the right to divorce is one of the husband's legal rights, but nevertheless, in some cases, women can request a divorce from the court, such as: the husband's refusal to pay alimony and the impossibility of forcing him to Alimony and… . Also in some cases of incurable diseases, the spouse can request a divorce from the court in accordance with paragraph 5 of Article 1130 of the Civil Code if it is proven that the spouse is suffering from incurable mental or contagious diseases or any other incurable condition that disrupts the common life. On the other hand, in the international law as well as the domestic law of many countries, there is a theory called "theory of change of circumstances" or "theory of unforeseen events" which has a lot in common with the rule of negation of hardship in Islamic jurisprudence and law, for example, in The American legal system has two bases for divorce and each state has chosen one of the two ways based on expediency: 1. fault-based divorce: in this type of divorce, there is a ground of fault such as sexual impotence, imprisonment for more than one year. Addiction disrupts cohabitation, violence, etc; 2. Divorce without fault: In this type of divorce, unlike the previous type, it is not necessary to prove the fault and only prove the couple's lack of compromise with each other and the inability to solve problems causes divorce.
Please cite this article as:
Karimi GH, Hamzeh E, Jafari M. A Comparative Study of Wife's Hardship and Difficulty in Iranian and American Law (with a Look at Husband's Incurable Diseases). Medical Law Journal. 2024; 18: e9.
Method: The method of this research is library and field. In this regard, in addition to referring to the sources available in books and articles, with an analytical approach, the legal aspects of the subject have been investigated from the perspective of two legal perspectives.
Ethical Considerations: In all stages of writing the present research, the originality of the texts, honesty and trustworthiness have been observed.
Results: Jurisprudential rules are propositions that are widely used in various aspects of jurisprudence and have a significant impact on the final derivation of rulings. In addition, these rules are the basis of many related laws and regulations in Iran. The rule of difficulty and hardship is one of these rules, by referring to it, if the compliance of a ruling is difficult or accompanied by a lot of hardship for the obligee, that ruling is lifted and compliance is not necessary. Today, social relations at the international level are widely Increasingly, the creation of marriage between nationals of countries with different cultures, customs, laws and regulations and specific family issues arising from it will not be excluded from this issue. Since private international law is the reflection of the domestic private law of countries in the international context, while discussing the difficulty and embarrassment in Iran's domestic law, reference is made to the contents of the relevant provisions in international law, especially the American law and in case We will reconcile the necessity of customs and traditions, social values and family regulations of these two countries.
Conclusion: In Iranian law and civil law, in Article 1133, the right to divorce is one of the husband's legal rights, but nevertheless, in some cases, women can request a divorce from the court, such as: the husband's refusal to pay alimony and the impossibility of forcing him to Alimony and… . Also in some cases of incurable diseases, the spouse can request a divorce from the court in accordance with paragraph 5 of Article 1130 of the Civil Code if it is proven that the spouse is suffering from incurable mental or contagious diseases or any other incurable condition that disrupts the common life. On the other hand, in the international law as well as the domestic law of many countries, there is a theory called "theory of change of circumstances" or "theory of unforeseen events" which has a lot in common with the rule of negation of hardship in Islamic jurisprudence and law, for example, in The American legal system has two bases for divorce and each state has chosen one of the two ways based on expediency: 1. fault-based divorce: in this type of divorce, there is a ground of fault such as sexual impotence, imprisonment for more than one year. Addiction disrupts cohabitation, violence, etc; 2. Divorce without fault: In this type of divorce, unlike the previous type, it is not necessary to prove the fault and only prove the couple's lack of compromise with each other and the inability to solve problems causes divorce.
Please cite this article as:
Karimi GH, Hamzeh E, Jafari M. A Comparative Study of Wife's Hardship and Difficulty in Iranian and American Law (with a Look at Husband's Incurable Diseases). Medical Law Journal. 2024; 18: e9.
Type of Study: Original Article |
Received: 2023/10/24 | Accepted: 2024/02/27
Received: 2023/10/24 | Accepted: 2024/02/27
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