No. 7 – 3 – Divorce and Women’s Options: Law and Practice in Iran
This article, based on an examination of legal statutes and court cases, examines the impact of the Islamic Revolution of 1979 on family law and women, focusing on the area of divorce. The article has two objectives First, it explores the relationship between law and the institution of divorce in Iran today, highlighting the gulf between legal and social conceptions of marriage Marriage as defined by law is a contract whose basic attributes are the non-reciprocal and unequal rights and duties of men and women, and the absence of any kind of matrimonial regime
Men have an unconditional right to divorce and polygyny; and women have no right over wealth accumulated during marriage Yet marriage as practised and understood by men and women involves a host of customary relations, obligations and duties, which go far beyond its legal conception Marriage in practise not only creates a joint matrimonial regime but varies greatly with individuals, the force of their character and their social origins It has a more egalitarian structure; men’s rights to polygyny and unilateral divorce are checked by a number of social and legal sanctions, for instance the practice of mahr or the conditions negotiated by the family and stipulated in the marriage contract. The second objective of the article is to show how women are turning the gulf between legal and social conceptions of marriage and divorce into a space of their own, and how they use the courts as an arena to modify the terms of their legal marriage contract.
After the 1979 Islamic Revolution in Iran, and the return to the Islamic law, feminists abroad made dire predictions about the fate of women in post-revolutionary Iran, as condemned to the status of chattels. Such predictions are reflected in the now substantial literature on the status of
women in post-revolutionary Iran. Most of these writings, particularly those that appeared in the 1980s, contend that Iranian women lost many rights they had before the Revolution – basing their case on the changes brought about in the law, especially the dismantling of the Family Protection Law.(1) More recent writings, especially since the 1990s are less polemical and more willing to explore the complexity of the situation.(2) Yet there has been little examination of the processes through which changes in law have been implemented in practice, and the paradoxical ways in which the whole process of Islamization of the legal system has come to empower women. This article maps, in broad outlines, the legal changes that have occurred in the sphere of the family law, especially with regard to divorce, since the Revolution which brought about the return of the Shari’a Law. It argues that, contrary to prevailing assumptions, Iranian women still enjoy a higher degree of legal and social support than other Muslim women when it , comes to negotiating the terms of their marital life. This article further _Icontends that the law and what entails for women cannot be separated from the context in which it operated, and can be understood only through its working, in how it deals with actual practices.(3)Its aim is two-fold: first, to shed light on the widening gulf between the legal and the social conceptions of marriage, and on women’s power to act within this space. Secondly, to show how women have appropriated this space, using the courts as an arena for the re negotiation of the terms of their marriage. FinallY, the paper indicates how the increasing gulf between legal rules and social practice is reflected in more recent legislations, in particular in the 1992 Amendments to the divorce laws.
The Legal System and Social Practice
Today in Iran two distinct conceptions, or models, of marriage co-exist. The first is marriage as defined and regulated by legal codes, based on dominant opinion within the Shi’a school of Islamic law, and the second is marriage as lived and experienced by ordinary people, shaped by customary relations, socio-economic constraints and the personalities of those involved. These two models are neither mutually exclusive nor necessarily in conflict, although at times they can be identified as two distinct and opposed forces. The actual situation is, of course, more complex than this dichotomy implies, yet it is a useful analytical tool for understanding the working of a body of law which derives its legitimacy from the Shari’a at the personal and societal levels.
Marriage as constructed by Shi’a figt (jurisprudence) is based on a patriarchal ethos imbued with religious ideals and ethical values. (4) This ethos defines marriage as a contract, whose essential components are the offer (ijab) which is made by the woman or her guardian, the acceptance (qabul) by the man, and the payment of dower or mahr(sum of money or any valuable that the husband pays or undertakes to pay to the bride before or after consummation). Only the man can contract more than one marriage at a time (up to four permanent and as many temporary as he desires) and can terminate each contract at will.
With the marriage contract, a woman comes under her husband’s isma (authority, dominion and protection), entailing a set of defined rights and obligations for each party; some have a moral sanction and others have legal force. Although the boundaries between the legal and the moral are hazy, it can be said that those sanctions with legal force revolve around the twin themes of sexual access and compensation, embodied in the concept of tamkin and nafaqa. Tamkin (submission, defined as unhampered sexual; access) is a man’s right and thus a woman’s duty; whereas nafaqa (maintenance, defined as shelter, food and clothing) is a woman’s right and a man’s duty. A woman becomes entitled to nafaqa only after the consummation of marriage, and she loses her claim if she is in a state of nushuz (disobedience), (5) while she has the right to refuse sexual access until she receives her ~in full.(6) It is essential to note that a woman retains full control over disposal. of her property and management of her affairs. The contract establishes neither a shared matrimonial regime nor reciprocal obligations between spouses; the husband is the sole provider and owner of the matrimonial resources and the wife is possessor of the !lli!!:lLand her own wealth. The only shared space is that involving the procreation of children, and even here a woman is not expected to suckle her child unless it is impossible to feed it otherwise.
Marriage as practised and experienced by ordinary people involves a host of customary relations, obligations and duties which go far beyond the figh conception. Some of these are themselves rooted in the ideals of the Shari’a, and enjoy its moral, though not its legal sanction. Marriage in
practice not only creates a matrimonial regime but varies greatly with individuals, with the force of their character, their social origins and their economic resources. It also has a more egalitarian structure; men’s unconditional rights to divorce and polygamy are checked by a number of social and legal sanctions, for instance the extended family with its own set sanctions, and the practice of mahr and other unwritten rules.(7)
Despite these aspects of practice and many other Shari’a moral sanctions,it is the contractual side of marriage that informs the legal rules in Iran, providing the only legitimate framework within which marital grievances can be articulated and eventually adjudicated. This means that when things go wrong in marriage, either the rules must be circumvented (as happens at the level of practice) or the reality must be redefined (as happens at the level of rhetoric). Both of these alternatives necessitate processes of intense negotiation, which take place in court when the marriage fails; and it is in this context that I discuss the theory and practice of divorce and locate women’s options.
The Scope of Family Law in Pre-Revolutionary Iran
As elsewhere in the Muslim world in the earlier part of this century, in Iran the advance of the modern nation-state was accompanied by extensive legal reforms, aiming to create a secular judicial system. The enactment of mod~rnist legislations gradually reduced the legal scope of Islamic law. In almost every branch of law the Western-inspired legal codes replaced traditional Islamic law, reducing its scope to that of family law. (8) In Iran, the first serious attempt to codify the law was made in 1927, when the Ministry of Justice set up a commission to prepare the draft of a Civil Code. Enacted between 1928 and 1936, the Civil Code, in matters other than personal status, shows the influence of European legal codes. The three chapters of the Iranian Civil Code on marriage, divorce and inheritance are in fact a simplification and codification of dominant opinions within classical shi’a law. The reforms introduced were adopted from other schools of Islamic law, that is, using the legal device of talfiq, and the only departure was the prohibition of marriage of girls under thirteen (Article 1041).
In 1931, a legislation – Marriage Law (Qanun Ezdevaj) – made marriage subject to state provisions, requiring registration of all marriages and divorces and denying them legal recognition unless they were restored in civil bureaux (Article 1). Failure to register did not, however, affect the validity of the marriage, it only incurred penalties. In addition, through insertion of stipulations in marriage contracts; a wife, in certain situations, could obtain the option of initiating divorce or divorcing herself on behalf of the husband (Article 4).
In 1967, another legislation – Family Protection Law (henceforth FPL) – introduced substantial reforms, aiming to restrict men’s right to divorce and polygamy. These were achieved largely through procedural devices; changing the rules for registration of marriages and divorces. New courts headed by civil judges (some of them women) were established to deal with the whole range of marital disputes. The amended version of FPL enacted in 1975 formally repeated all laws contrary to its mandate, and in effect provided its courts with discretionary powers to by-pass the fiqt. model, as reflected in the articles of the Civil Code, with impunity. The registration of divorce and polygamous marriage without a certificate issued by these courts became an offence, subject to a penalty of six months’ to one year’s imprisonment for all parties involved, including the registrar. (9) In the absence of the mutual consent of spouses to divorce, the court would issue a certificate upon the establishment of certain conditions. Grounds available to men were parallel to those available to women. The husband’s failure to support his wife, his second marriage, or his failure to treat co-wives equally, gave women additional grounds for divorce (Article 11 of 1967 FPL, Article 8 Of 1975 FPL). To avoid a total break with the articles of the Civil Code, which recognize divorce as the exclusive right of men, the 1967 law required that conditions in which a divorce certificate could be requested from the court be included as a stipulation in all marriage contracts. Accordingly, new marriage contracts were issued in which these conditions were already printed. The insertion of stipulations was already recognized by the Civil Code and the Marriage Law, but prior to 1967 it was not only optional but did not affect the husband’s exclusive right to termination of marriage.
In February 1979, soon after the victory of the Revolution, the FPL was declared to be non-Islamic, and its suspension was announced, although it was never legally repealed. There followed a period of uncertainty during which the FPL courts continued to function, until September 1979, when they were replaced by the Special Civil Courts (dadgahha-ye madani-ye khass). Established by a legislation with the same name, the new courts are presided over by a hakem-e shar’ (a judge trained in fiqh. ‘Special’ here denotes the freedom of these courts from the law of evidence and procedure contained in the Civil Procedure Code, investing them with the same degree of discretionary power as the pre-revolutionary FPL courts.
With respect to divorce, two changes were effected. First, whereas between 1967 (when FPL was enacted) and 1979 (when its courts were abolished) no divorce could be registered without the production of a Certificate of Impossibility of Reconciliation issued by a FPL court, between September 1979 (when the Special Civil Courts were created) and ~ December 1992 (when the divorce laws were amended) a divorce could be Iregistered if both parties reached a mutual agreement. The only cases that – needed to appear in court were those where one party, either the husband or. the wife, objected to the divorce or its terms. Secondly, in conformity with the Civil Code position on divorce (Article 1133), men are no longer required to provide grounds, but women can obtain a divorce only upon establishing one of the recognized grounds, which are basically the same as those available to them under the FPL.
At the same time men’s right to unilateral (but not extra-judicial) divorce was restored, attempts were made to compensate women in the face of it. In 1982 new marriage contracts were issued which carry, in addition to divorce stipulations, another one which entitles women to claim half the wealth that her husband acquired during marriage, provided that the divorce is neither initiated by her nor caused by any fault of hers. In 1992, a legislation entitled Amendments to Divorce Regulation once again outlawed the registration of a divorce without a court certificate (which incidentally has the same name as that issued under the FPL). This legislation also allows the appointment of women as advisory judges to work in co-operation with the main judge. More importantly, it enables the court to place a monetary value on women’s housework, and to force the husband to pay her ujrat al-mithl (literally, wages in kind) for the work she has done during marriage, provided the divorce is not initiated by her or is not caused by any fault of hers. Now every divorcing couple are required to go through a process of arbitration. If the arbiters, one chosen by each side, fail to reconcile them, the court allows the man to effect a divorce – which has to be of raji type (10) – only after he has paid his wife all her dues: dower mahr waiting period (idda) maintenance and ujrat al-mithl (domestic wages). The registration of a raji divorce is also made contingent upon the production of another certificate confirming that the wife spent her idda period (three menstrual cycles, or until delivery if she is pregnant) in the marital home and was provided for by the husband.
By introducing the concept of alimony for divorced women in the form of ujrat ul-mithl, and substantially restricting men’s right to repudiation (talaq), the 1992 Amendments break new ground in divorce provisions of the Shi’a school of law: they limited men’s ability to act capriciously, and protect women against such insecurity by providing them with some financial support. Let us now examine marital disputes that made their way to the court and see how the law is implemented. How do women relate to the law? What are their bargaining cards and their handicaps?
Divorce Cases in the Court and Women’s Options
Each marital dispute, before appearing in court, goes through phases in which the families of both spouses attempt to find a peaceful solution to it. There is a stigma attached to making public that which belongs to the private domain of the family. The court cases represent instances in which familial and kinship pressures have already failed to prevent them from making their way to court either by salvaging the marriage or by terminating it peacefully. (11) This is where their significance lies; they demonstrate areas of marital conflict that now can be regulated only by administration of the Shari’a. Before discussing court cases, we need to place them in context by examining the legal and social realities of divorce.
In the legal conception of divorce, there is a difference between men’s and women’s rights, which is also reflected in the language a woman is either divorced or has to seek to be divorced. This conception is embodied in 29 Articles (1120 -1149) of the Civil Code, whose essence is a man’s right of talaq, that is, his exclusive right to terminate a marriage at any time, he needs neither grounds nor the consent of the wife (Article 1133). In its legal structure,talaq is an act of iqa as opposed to marriage, which is an act of aqd. The difference between the two is that aqd is a type of legal act that requires the consent of two parties, its formula containing offer and acceptance; while iqa is a unilateral act which acquires legal effect through the declaration of only one party; in the case of talaq the husband. A woman cannot be released from marriage without her husband’s consent, although she can secure her release through offering him inducements, by means of either khul or mubarat. In khul, separation is claimed by the wife because of her extreme dislike ikrah of her husband, and there is no ceiling to the amount of compensation (‘awad) that she pays (Article 1146). In mubarat, on the other hand, the dislike is mutual and the amount of compensation should not exceed the value of the ill9-b! itself (Article 1147). These two are commonly referred to as divorce by mutual consent.
If the wife fails to secure his consent, then her only recourse is the intervention of the court. Her husband’s impotency or insanity, even if they occur after the marriage contract, enable her to ask for its annulment (Article 1125). Grounds which entitle a wife to divorce are; the husband’s refusal or inability to provide for her(Article 1129),his failure to perform his marital (sexual) duties, his maltreatment of her and his affliction with a disease that would endanger her life (Article 1136, before its amendment in 1982). To broaden these grounds further, the 1967 FPL resorted to a legal device, which could in theory put women on the same footing as men in terms of access to divorce. This is the insertion of stipulations into the marriage contract granting the wife the delegated right to divorce herself on behalf of her husband after recourse to the court, where she must establish one of the inserted conditions. Although, as already noted, both the Civil Code (Article 119) and the 1931 Marriage Act (Article 4) recognized the insertion of stipulations, it was left to the woman,and in effect her family, to negotiate such a right for her, which seldom happened and only among the property-holding middle classes. It was only with the FPL that situations in which a divorce certificate could be requested from the coun came to be included as stipulations in all marriage contracts. As noted, this aspect of reform was retained and expanded after the Revolution to provide women with financial protection in the event of an unwanted divorce. The 1982 marriage contracts carry stipulations, enabling women to obtain a court divorce more or less on the same grounds available to them under FPL, in addition to another stipulation which enables them to claim a share of the matrimonial wealth in the event of an unwanted divorce, as the decision lies with the judge. I have not yet come across any case in which the wife has Ireceived any portion of the husband’s wealth, so the new stipulation appears to be in practice ineffective.
As we shall see, the post-revolutionary law restored – in fact improved – the grounds available to women under FPL, although it changed women’s access to divorce, as both the legal logic and the court procedure are now different. The 1982 amended version of Article 1130 empowers the Islamic judge (hakim-e shar’) to grant or withhold a divorce requested by women He can compel the husband to pronounce talaq or effect it on the husband’s behalf if he considers that the continuation of marriage would entail ‘usr va harai (hardship and harm). This is a figh concept which allows the sanction of a rule to be lifted when adherence to it creates hardship. In the sphere of marriage, its implication is that, for a woman, remaining married is a rule as long as her husband desires it; to be released from a marriage, she needs to prove that in its continuation is causing her harm. This is the rationale upon which divorce grounds made available to women under FPL were retained and further extended after its partial dismantling. In fact, the tipulations inserted in marriage contracts in 1982 must be seen as means of identifying and listing those circumstances which can render marital life intolerable to the wife.
These are: the husbands failure to support her or to fulfil other compulsory duties for at least six months; husband’s maltreatment (of the wife) to the extent that the continuation of the marriage has been rendered untenable for her; husband’s affliction with any incurable disease that may endanger herhealth; husband’s insanity, in cases where the annulment of marriage is not possible; husband’s failure to comply with a court order to abstain from an occupation which is repugnant to the wife and her position; .husband’s sentence to a prison term of five years or more, or failure topay a fine which results in his imprisonment for a period of five years or more; husband’s addiction to anything harmful, which according to the court’s judgement is detrimental to family life and renders the continuation of marital life difficult for the wife; husband’s desertion of marital life without just cause for more than six months (the court decides on the question of his desertion and on the acceptability of the excuse); husband’s conviction for any offence or sentence including hadd (fixed Islamic punishment for certain crimes) and tszir (discretionary punishment awarded by hakim-e shar’) that is repugnant the family and position of the wife; . husband’s failure to father a child after five years of marriage; husband’s disappearance and the failure to find him within six months of the wife’s application for the court; husbands second marriage without the consent of the first wife, or his failure to treat co-wives equally; Regardless of how a marriage is terminated, a woman needs to keep a waiting period (idda) of three months (three menstrual cycles) during which period she cannot remarry. She retains a claim to nafaqa for this period only if the talaq is of raji (revocable) type, in which the husband has the right of return .{ruju) to marriage; her consent is not required (Articles 1143-5 & 1148-9). But in divorces of mutual consent (i.e.khul or mubarat), which are irrevocable (bain), the wife has no claim to nafaqa for the ~period, and the husband no right to return to marriage unless she agrees to it and he returns to her compensation he received for agreeing to divorce. Apart from these two types, a divorce is bain only in the following conditions; if the marriage has not been consummated; if the woman is past her menopause; if she has not reached the age of menstruation; or if it is the third successive divorce. The children always go to the father, a mother has custody rights for a son until he reaches the age of two and a daughter until she is seven (Article 1169). This is, in a nutshell the legal reality of divorce. The law itself, however, is subject to redefinition and modification, as a result not only of confrontation with social practice but also interpretation and application by the legal system. I have discussed the issues involved elsewhere; (12) here I can only give an intimation as to how women and the courts deal with the law.
All divorce cases in court can be divided, roughly speaking, into two categories; those in which the marriage has irretrievably broken down; and those in which the marriage is under strain but has not yet failed. In the first category, women come to court not to salvage the relationship but to retrieve something of what they have put into it; their investment in terms of youth, work, emotions, love, trust and above all their children. In the second relationship, to reach a new balance.
All divorce cases of both categories have two interacting levels, or two distinct agenda. The manifest agenda, which is articulated in court, reflects the legal reality; the hidden agenda, which is not articulated directly, reflects the social reality of divorce. these two agenda interact and define each other, but the court can only deal with the manifest agenda, which becomes the language through which women must articulate and struggle to achieve their hidden agenda. Not surprisingly, in cases of both categories, women tend to make financial demands, claiming their nafaqa or mahr which is the only way that they can make their husbands pay for what they see as a breach of their conjugal rights.
In both categories, by the time that the marital dispute reaches court, it has already become a war of attrition, in which each party tries to outdo the other. What causes and then fuels this war of attrition, which varies according to the personalities, conjugal circumstances and socio- economic contexts of the parties, is the conflict between the legal and the social conceptions of marriage. While the law concedes neither a shared area of ownership, nor equality and reciprocity in conjugal rights and duties, marriage In practice assumes both to be the case. When marriage breakdown occurs as a result of the straining of this sharing and reciprocity by the conduct of the husband, this often becomes a court case, where the wife does what she can to offset his power, to create a new balance and retrieve her own share of it.
Two common ways in which men retaliate are violence and desertion. Through violence and physical domination, men can reassert the authority which law bestows on them but which has little basis in their own experience of marriage. Physical violence becomes a measure of the erosion of a man’s authority in marriage; it is more frequent when marriage comes under pressure exactly because of the more acute need for such a reassertion.
Women’s reaction to both violence and desertion is to make more financial demands. In this way, a wife makes her husband pay, both literally and figuratively. The very elements that give men power in marriage can now be turnel1 against them. The husband’s authority is a function of his economic capability, a two-edged sword. A man unable to pay has little power over his wife, and has little choice but to negotiate the terms of continuation or termination of the contract. However, the ways in which the negotiation takes place, and women’s choices and options, are determined by socio-economic context in which the marriage is embedded.
Women who come to court to petition for a divorce are those who enjoy the support of their natal families or are economically independent. These women often belong to middle strata of society, where neither is divorce so stigmatized nor are women’s options so limited. They come to court because they have failed to secure their husbands’ consent. These cases can be understood only in the context of power relations; they are those which have already defied other sanctions, namely familial and financial. By refusing a divorce, a man continues to hold on to his power over his wife, even though he knows that the marriage is over. That is the way, and often the only one, in which he can realise his legal prerogatives when she leaves the marital home. By bringing the case to court, the wife retaliates and thus takes the marital battle to another stage. Her main negotiating card is her mahr, as by leaving the marital home she has already lost her claim to nafaqa. The mahr is always prompt, i.e. the husband is legally obliged to pay it upon her request, and it is often substantial, and certainly beyond his immediate means. By forgoing her mahr, a woman often succeeds in obtaining her husbands consent to a khul divorce and thus drops the case. A large majority of divorce cases initiated by women never reach the state of judgement, as they are abandoned after two or three hearings because either the woman succeeds in reaching an out-of-court agreement with her husband, or she decides to give up realising the futility of her efforts. The fact that more than 50 percent of all divorces registered in any given year in Tehran are of khul type suggests that, by forgoing their mahr, women often succeed in inducing their husbands to consent to divorce. (13) If not, women can count on the court’s support only if they can persuade the judge that their decision is not based on caprice but on the children’s welfare, and that the marriage is indeed causing them harm.
On the other hand, women who come to court to resist a divorce petitioned by the husband can count on the court’s support, especially when the judge deems the man’s decision to be based on caprice. In some cases the husband has left the marital home and has set up a new one with a second wife, who is now putting pressure on him to divorce the first. In others the husband is cruel and mean to the wife and children. Often the only option left for a woman in such a case is to delay a divorce as long as possible, and meanwhile to take as much as she can, She makes one petition for nafaqa. and another for mahr, and makes their waiver contingent upon getting custody of the children, a share of the marital home and a set maintenance payment for the children. These options are, of course, open to her only if the husband is in a position to pay; among the poor, such divorce cases seldom take more than one session. In fact, it seems that here women have more or less equal access to divorce; often the husband lets the wife take the initiative to make a petition for divorce which will free him from further loss of face, and enable him to escape his legal obligations, namely paying the mahr and idda dues set by the court.
Such are the common ways in which women use the law and the courts to negotiate the terms of their divorces. As to the legal position, it appears that in 1992, almost thirteen after the abolition of those provisions in the FPL which outlawed the registration of any divorce without a court certificate, a restoration of such a measure has been necessitated by the need to accommodate the legal rules with the social imperatives of divorce. An accommodation is needed, not only because the gulf between law and practice has come to be more intensely felt since the dismantling of the FPL in 1979, but because women have also come to interpret the consequences of this gulf as a violation of their own conjugal rights, and as a measure of the law’s failure to protect them.
One can say that the FPL rules, which represent a different interpretation of the legal position on divorce from that of traditional Shi’s figh correspond with the social realties of divorce. They created a legal frame of reference within which men and women could be treated on a more equal basis in matters of divorce and child custody. This legal frame of reference was widely welcomed by women from all walks of life, even the most religious. In the early 1980s when I first started attending Tehran branches of the Special Civil Courts, women who came to court were astonished to learn that their husbands could now divorce them without first securing their consent. Some remained incredulous and would ask more than one judge; “Can he really divorce me, just like this? Is this what the Shari’a says?” In 1985, when I resumed my court attendance, although no longer incredulous, women were insistent on voicing their discontent; some used every occasion to remind the judge of the injustice of a system which could afford them no protection. On this, they often had the judge on their side, especially when a man would insist on exercising his right to divorce and his wife was entirely dependent on him, with no other source of income or nowhere else to go. It was common to hear women asking the judge; “Is this how women are honoured in the Islamic Republic? Is this how Islam rewards motherhood, that he can throw me out just because he has found a younger wife? Where do I go now? What will become of my children?” To these questions, judges had nothing to reply, apart from assuring the women that the court would make sure that they received all their dues. Some judges would employ every available legal device to protect these women against what they deemed an unfair and unjustified divorce. But no judge could prevent a man from exercising his prerogative to divorce as mandated by Article 1133 of the Civil Code.
As to ways in which the most recent (1992) Amendments compare with the FPL, it can be said that, at the level of practise, by making divorce contingent upon the husband’s payment of marital dues, they place the wife in a better position for negotiating the terms of her divorce than was the case under FPL. If she is the party who seeks the dissolution of the marriage, by forgoing her mahr- which, as practised in Iran, is not only substantial but legally payable upon her request – she is in a better position to obtain a khul divorce. If he is the one who wants to terminate the marriage, by demanding her ujrat al-mithl she can make her husband change his mind or even force him to provide her with a kind of alimony. However, by requiring every divorcing couple to go through the process of arbitration, these amendments are further complicating the whole process of negotiation that proceeds any divorce, as well as creating a great deal of work for already overworked judges.
No study has been published (and probably none was ever done) of the actual working of the dismantling of FPL in pre-revolutionary Iran, and we do not know how its court operated, and to what extent men were prevented from exercising their right to divorce. What we do know is that its main beneficiaries were working middle-class women, who were seeking divorce and wanted to keep their children. In the Special Civil Courts (prior to the new amendments), by contrast, as my own work suggests, the beneficiaries are non-working women, entirely dependent on their husbands for support, and women who present no overt challenge to the patriarchal structure of the family.What is clear at this stage is that, at least in theory, the 1992 amendments do offer a better deal than the FPL to women with little economic independence. It does make it impossible for men to exercise their unilateral divorce right with impunity. This sanction, I believe,can serve women with no economic security outside marriage better than equal rights in matters of divorce and child custody.
Conclusions
Since 1994 and the restructuring of courts in Iran, family disputes, like other types of disputes, now appear in General Courts, some of which are headed by religious and others by secular judges. (14) However, the kind of marital disputes heard and the limits within which women can
negotiate have not radically changed. The husband still has the upper hand in terminating a relationship, and the right to keep the children, although he now has to pay in order to exercise this prerogative. Now the wife can claim a share of the matrimonial resources in the form of ujrat al- mithl. or wages in kind. The 1992 Amendments to Divorce Regulations require all these negotiations to take place in court.
These amendments offer women a degree of protection in marriage. This is so because they acknowledge, although in a convoluted way, not only that a matrimonial regime exists and that the wife is entitled to a share of it, but that men’s rights to divorce and polygamy do harm the family. The spirit and juristic logic of these amendments are to protect and reward those women who conform to the model of marriage as constructed by the Civil Code, and to penalize those men who abuse their rights of polygamy and unilateral divorce – in short, to give legal force to the moral injunctions of the Islamic ethos. But what this logic tends to ignore is that this can be done only when the law is prepared to address the core issue of the disparity between men’s and women’s access to divorce, which itself is at the root of marital abuse and the court’s inability to protect women. As court cases suggests, it is the abuse of the legal model of marriage by one party which lies at the root of its breakdown. In fact, if one looks at successful marriages, those that never make their way to the courts, one finds a more egalitarian structure in which there is a kind of unwritten rule entitling both partners to rights to marital resources and preventing one partner (be it the husband or the wife) from controlling or abusing the other.
It remains to be seen how the courts are going to implement and interpret the 1992 amendments, and whether women can use them to gain more security in marriage and a better bargaining position when it breaks down. If the 1982 marriage stipulations entitling the wife to half a man’s
wealth is any guide, ujrat al-mithl will become either a similar legal fiction, or, contrary to what the legislators intend, a bargaining card for women who seek divorce.
Notes:
(1) For earlier literature, see for instance H. Afshar, “Women, Marriage and the State in Iran,” in H. Afshar (ed) Women, State and Ideoloav: Studies from Africa and Asia (Albany ;SUNY Press, 1987); F Azari (ed), Women in Iran (London; Ithaca Press, 1983); A. Tabari, “Islam an the Struggle for Emancipation of Iranian Women,” in A Tabari and N. Yedaneh (eds)in the Shadow of Islam (London, Zed Press, 1982); A Tabari, “The Enigma of the Veiled Iranian Women,” MERIP 12/2(February 1982), pp. 22-27; A. Tabari, “The Women’s Movement in Iran; A Hopeful Prognosis,” Feminist Studies 12/2 (Summer 1986), pp. 342-360; E. Sanasarian, The Women’s Riahts Movement in Iran (New York; Praeger, 1982); G. Nashat, “Women in the Ideology of the
Islamic Republic,” in G. Nashat (ed.) Women and Revolution in Iran (Boulder; Westview Press, 1983); S. Mahdavi, “The Position of Women in Shai’a Iran; Views of the Ulama'” in E Femea (ed.) Women and the FamiY in the Middle East: New Voices of Chanae(Austin; University of Texas Press, 1985); M. Reeves, Female Warriors of Altah: Women and the Islamic Revolution (New York; Dutton, 1989).
(2) For more recent literature, see for instance, S. Haeri,”Temporary Marriage: an Islamic discourse on Female Sexuality in Iran,” in M. Afkhami and E. Friedl (eds) In the EYe of Strom: Women in Post-Revolutionary (New York: Syracuse University Press, 1994); N Ramazani, “Women in Iran: The Revolutionary Ebb and Flow,” Middle East Journal 47/3 (1993), pp. 409-28; E. Sanasarian, “Polotics of Gender and Development in the Islamic Republic of Iran,” Journal of Developing Societies 8 (1992), 56-58; V. Moghadam, “Women, Work, and Ideology in the Islamic Republic,” International Journal of Middle Eastern Studies 20 (1988), pp. 221-243; V. Moghadam, Modernizing Women: Gender and Social Chance in the Middle East (Boulder; Lynne Rienner, 1993); M. Afkhami and E. Friedl (eds) In the Eye of Strom: Women in Post-Revolutionary iran (New Yorh; Syracuse University Press, 1994).
(3) Z. Mir Hosseini. Marriage on Trial: A Study of Islamic Familyv Law (London; I.B. Tauris, 1993)
(4) Here I made a distinction between the Shari’a (the Revealed Law), and fiqh (the science of Islamic jurisprudence) While Shari’a contains the divine design of God for mankind, figh contains the endeavours of Muslim jurists to elucidate the terms of this design and thus like any human endeavour bears the trace of time and place. The boundries between them are blurred and, for Muslims, especially in popular belief and for those with no knowledge of scholarship in Islamic sciences, they come to be synonymous,. For fLgh sources used, and a more detailed discussion, see Mir-Hosseini, Marriage on Trial, pp 31-41.
(5) Nushaz literally means ‘rebellion’ and it implies the abandonment of marital duties; despite the fact that it is acknowledged that such abandoment can take place on the part of both spouses, in figh sources the trem nashiza (rebellious) is used mainly in the feminie form and in relation to maintenance rights.
(6) But once she has consented to it she can no longer make tthe perfomanance of her marital duties contingent on it (Iranian Civil Code, Book 7, Chapter 7, Articles 1085 & 1086).
(7) For an extended discussion, see Z Mir-Hosseini, “Women, Marriage and Law in Post-Revolutionary Iran”, in H. Afshar (ed) Women in the Middle East Preceptions. Realities and Struggles for Liberation (London; Macmillan, 1993).
(8) The impetus and the processes of reform varied from one country to another. On the whole, one can say that Muslim countries followed one of three paths: abandoning the Shari’a in all spheres of law and replacing it by Western-inspired code; retaining and codifiying the Shari’a with respect to personal status law (family, inheritance, endowment), while abandoing it in other areas of law; or preservining Islamic law as the fundamental law and attempting to apply it in all spheres of law. A large majority of Muslim countries, including Iran before the Revolution, chose the middle path; Turkey is the only country that opeted for the first; the third path was followed by Gulf countries, and now also by Sudan and Iran. For more detailed discussion see Mir-Hosseini, Marriage on Trial, pp. 3-14.
(9) For an English translation of the Fpl, see A.R. Naqavi, “The Family Protection Act.” Islamic Studies 6, 1967, 241-66
(10)Talaq-e raj’i is a suspended form of divorce which becomes final only when the wife completes three menstrual cycles, known as the idda period
(11) This was the case prior to the 1992 divorce amendments. Since then all divorcing couples, even those who have reached an agreement, need to appear in court.
(12) Mir- Hosseini, Marriage on Trial. Chapter 2.
(13) Interestingly, less than 30 percent of divorces in any given year are of raji type (i.e. ordinary divorces effected unilaterally by men). Statistics from the Ministry of Justice
(14) To deal with cases involving a dispute over the asl (essence) of marriage and divorce, the presiding judge needs to be authorized by the Head of the Judiciary; Note 3 of Article 1, The Law of Formation of General Courts.