Iran, Islamic Republic of

Iran, Islamic Republic of

*Please note this is just a draft and all contents are still under revision.*

Legal System/History

Ruled by series of dynasties for 2,500 years. Shi’ism declared official religion of Iran under Safavid rule (1501-1722). Increasing influence of European powers, beginning with capitulations to Russians, in 19^th century. 1906 first Constitution promulgated. Series of laws enacted thereafter, relating to criminal, civil, commercial, and family law. By 1936, legislation made secular education requisite for serving judges. Major changes introduced in area of family law under Reza Shah with passage of Family Protection Law 1967 (significantly amended 1975) abolishing extra-judicial divorce and requiring judicial permission for polygamy and only for limited circumstances. 1979 Revolution brought end to Pahlavi dynasty (1925-1979). Supreme Judicial Council issued proclamation directing courts that all un-Islamic legislation was suspended. Council given remit to revise all existing laws to Islamise legal system, with Ayatollah Khomeini’s fatawa serving as ‘transitional laws’. Vilayat al-faqih.

Sources of law are Islamic law, constitutional law, legislation, informed sources (e.g., custom, revolutionary principles, etc.).

School(s) of Fiqh

Ja’fari majority, Hanafi minority; also Zoroastrian, Jewish, Christian and Baha’i minorities.

Constitutional Status of Islam(ic Law)

Current Constitution adopted 2^nd-3^rd December 1979; significant revisions expanding presidential powers and eliminating prime ministership in 1989. Article 4 provides that all civil, penal, financial, economic, administrative, cultural, military, political, and any other laws must be based on Islamic criteria; Article 12 provides that official religion is Islam and the twelver Ja’fari school; other schools of law to be accorded full respect and freedom of religious practice, including matters of personal status.

Court System

Constitution provides that chief of Supreme Court and Prosecutor-General must be mujtahids; Special Civil Courts established in 1979 to adjudicate over matters relating to family law, succession and awqaf.

Court structure since Revolution: [figures as at 1984]

Revolutionary Courts: (70 branches)

Public Courts: Civil Courts (205), Special Civil Courts (99), 1^st Class Criminal Courts (86), 2^nd Class Criminal Courts (156)

Courts of Peace: Ordinary Courts of Peace (124), Independent Courts of Peace (125),

Supreme Court of Cassation (22)

Relevant Legislation

Civil Code 1928-1935 (significant amendments in 1982)

[Family Protection Law 1967 repealed]

Special Civil Courts Act 1979

1992 law amending regulations on divorce

Notable Features

Marriage Age: Civil Code provides that marriage contracted before puberty is invalid unless authorized by natural guardian with ward’s best interests in mind. When authorized before puberty, minimum age is nine.

Marriage Guardianship: marriage of virgin girl (even after puberty) requires permission of father or paternal grandfather; Special Civil Court may grant permission if guardian refuses without valid reason.

Marriage Registration: Identity Office must be notified of all temporary or permanent marriages and their dissolution. Marriages between Muslim women and non-Muslim men are not recognized. Baha’i marriages are not recognized.

Temporary Marriage: permitted; must be for fixed time period.

Polygamy: wife may obtain divorce if husband marries without her permission or does not treat co-wives equitably in court’s assessment.

Obedience/Maintenance: subject to classical conditions; wife who is not nashiza may take matter to court if husband refuses to pay maintenance and court will fix sum and issue maintenance order – arrears of maintenance to wife have precedence over all other liabilities against husband; in temporary marriage, wife only entitled to maintenance if contract stipulates such; husband may deny his wife right to work in any profession "incompatible with the family interests or with the dignity of himself or of the wife"; wife’s refusing conjugal relations where husband has contracted venereal disease not deemed disobedience.

Talaq: governed by classical Shi’i law requiring specific formula and two male witnesses; conditional divorce is invalid; 1992 reforms make registration of divorce without court certificate illegal; wife may obtain khol’ divorce in return for consideration of more or less than nuptial gift (mahr);

Judicial Divorce: under Civil Code, recission of marriage permitted on following grounds: proven insanity of either spouse; husband’s castration or inability to consummate marriage; defect of the wife interfering with conjugal relations or her total blindness, contracting leprosy or becoming seriously crippled if they existed at time of contract; husband’s inability or unwillingness to pay maintenance, after failure to comply with maintenance order; and in final instance, where continuation of marriage constitutes proven difficulty or hardship for wife, judge may compel husband to divorce wife or grant her a judicial divorce. 1992 amendments extend wife’s access to divorce by addition of following grounds: husband’s non-maintenance for up to six months for any reason; husband’s bad behaviour, keeping bad company, etc. making continuation of married life impossible for wife; husband’s incurable disease constituting danger to wife; husband’s madness in cases where annulment would not be possible according to shari’a; husband’s non-compliance with court order to avoid demeaning or dishonourable employment; husband’s conviction to sentence of five or more years; husband’s addiction constituting a danger to family and marriage (determined by court); husband’s desertion or leaving marital home for six months without legitimate cause (determined by court); husband’s conviction for crime bringing dishonour to family (determined by court); husband’s infertility for five years of marriage or his contracting sexually transmitted disease; husband’s disappearance for six months; and husband’s polygamous marriage without first wife’s consent, if court considers co-wives are not being treated equally.

Post-Divorce Maintenance/Financial Arrangements: 1992 amendments extended divorced wife’s financial rights from maintenance during ‘idda and deferred dower, to right to claim compensation for household services rendered to husband during marriage.

Child Custody and Guardianship: mother’s custody ends at 2 years for boys and 7 for girls; custody reverts to father if mother remarries. Mother may be granted custody in certain cases if the father is proven unfit to care for the child.

Succession: governed by classical law; descendants (how low soever) of predeceased children of propositus inherit in place of their parents. Children of Baha’i marriages are not recognized as legitimate and, therefore, are denied inheritance rights.

Notable Cases

Law/Case Reporting System

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – signature 1968, ratification 1975 without reservations

CRC – signature 1991, ratification 1994 with general declaration and reservation

Legal History:

Iran was ruled by a series of dynasties for 2,500 years. Shi’ism became the official religion under Safavid rule (1501-1722). The increasing influence of foreign powers in the region under the Qajars (1795-1925) began with a series of capitulations to Europeans, beginning with the Russians, in 19^th century. In 1906 the first Constitution was promulgated. A series of laws were enacted thereafter, relating to criminal, civil, commercial, and family law. By 1936, legislation made secular education a requisite for serving judges. Major changes were introduced in the area of family law under Reza Shah with the passage of Family Protection Law 1967 (significantly amended in 1975) abolishing extra-judicial divorce, requiring judicial permission for polygamy and only for limited circumstances, and establishing special Family Courts for the application of the new personal status legislation. The 1979 Revolution brought end to Pahlavi dynasty (1925-1979). Supreme Judicial Council issued proclamation directing courts that all un-Islamic legislation was suspended. Council given remit to revise all existing laws to Islamise legal system, with Ayatollah Khomeini’s fatawa serving as ‘transitional laws’.

Sources of law are Islamic law, constitutional law, legislation, informed sources such as custom, revolutionary principles, etc.

Schools of Fiqh: The Ja’fari school is the predominant madhhab in Iran. There are also Hanafi Muslim minorities, as well as Zoroastrian, Baha’i, Christian and Jewish minorities. The officially recognised religions are Sunni Islam, Zoroastrianism, Judaism, and various Christian denominations. Under a 1933 law relating to the rights of non-Shi’i Iranians, courts are to apply the personal status laws applicable to the litigants belonging to officially recognised religions.

Constitutional Status of Islam(ic Law): The current Constitution was adopted on 2^nd-3^rd December 1979, with significant revisions expanding presidential powers and eliminating the prime ministership in 1989. Article 4 provides that all civil, penal, financial, economic, administrative, cultural, military, political, and any other laws must be based on Islamic criteria. Article 12 provides that the official state religion is Islam and the twelver Ja’fari school; other schools of law are to be accorded full respect and freedom of religious practice, including matters of personal status.

Court System: Special Courts established by the Family Protection Act 1967 were dissolved after the Revolution. The 1979 Constitution provides that the chief of the Supreme Court and the Prosecutor-General must be mujtahids. The Special Civil Courts were established in 1979 to adjudicate over matters relating to family law, succession and awqaf.

The court structure since the Revolution is as follows (numbers as of 1984):

Revolutionary Courts: (70 branches)

Public Courts: Civil Courts (205), Special Civil Courts (99), 1^st Class Criminal Courts (86), 2^nd Class Criminal Courts (156)

Courts of Peace: Ordinary Courts of Peace (124), Independent Courts of Peace (125), Supreme Court of Cassation (22)

Notable Features: The Civil Code provides that marriage before puberty is invalid unless authorised by the natural guardian. When authorized before puberty, minimum age is nine. The marriage of a virgin girl (even after puberty) requires permission of the father or paternal grandfather; a Special Civil Court may grant permission if the guardian refuses without valid reason. The Identity Office must be notified of all temporary or permanent marriages and their dissolution. Temporary marriage is permitted, and must be for fixed time period. Polygamy is permitted. Marital obedience and maintenance are governed subject to classical conditions.

A 12-article law on marriage and divorce passed in 1986 allows the wife the right to obtain a divorce if the husband marries without her permission or does not treat co-wives equitably in the court’s assessment. A wife who is not nashiza may take the matter to court if her husband refuses to pay maintenance and the court will fix a sum and issue a maintenance order. Arrears of maintenance to the wife have precedence over all other liabilities against husband. (In temporary marriage, the wife is only entitled to maintenance if the contract stipulates such.) The husband may deny his wife the right to work in any profession "incompatible with the family interests or with the dignity of himself or of the wife". The wife’s refusing conjugal relations where husband has contracted venereal disease not deemed disobedience.

Talaq is governed by classical Shi’i law, requiring a specific formula and two male witnesses. A conditional formula of divorce is invalid. 1992 amendments provide that registration of divorce without a court certificate is illegal. The wife may obtain a khol’ in return for consideration of more or less than nuptial gift (mahr). Judicial divorce is available on the following grounds: proven insanity of either spouse; husband’s castration or inability to consummate marriage, (husband’s lunacy or impotence are grounds whether they occurred before or after the contract); defect of the wife interfering with conjugal relations or her total blindness, contracting leprosy or becoming seriously crippled if they existed at time of contract; husband’s non-maintenance, after failure to comply with maintenance order (whether he is unable or unwilling); and where continuation of marriage constitutes proven difficulty or hardship for the wife, if the husband refuses to divorce her. A 1992 amendment law extended the wife’s access to divorce by the addition of the following grounds: husband’s non-maintenance for up to six months for any reason; husband’s bad behaviour, keeping bad company, etc. making the continuation of married life impossible for the wife; husband’s incurable disease constituting a danger to the wife; husband’s madness in cases where annulment of marriage would not be possible according to the shari’a; husband’s non-compliance with a court order to avoid demeaning or dishonourable employment; husband’s conviction of five or more years; husband’s addiction constituting a danger to his family and marriage; husband’s desertion or leaving the marital home for six months without legitimate cause (legitimate cause being determined by the court); husband’s conviction for a crime bringing dishonour to family (definition of a dishonourable crime to be determined by the court); husband’s infertility for five years of marriage or his contracting a sexually transmitted disease; husband’s disappearance for six months; and husband’s polygamous marriage without his first wife’s consent, if the court considers the co-wives are not being treated equally. to half of her husband’s assets if the court finds the divorce was initiated by the husband and was not caused by any failure on the wife’s part. A reform introduced in 1992 extended the divorced wife’s financial rights from maintenance during ‘idda and her deferred dower to the right to sue for payment for household services rendered to their husbands during marriage, although the measure is difficult to apply in practice partly because of the difficulty in assessing wages for housework.

The mother’s custody ends at 2 years for boys and 7 for girls; custody reverts to the father if the mother remarries. Mother may be granted custody in certain cases if the father is proven unfit to care for the child.

Succession is governed by classical law; descendants (how low soever) of predeceased children of the propositus inherit in place of their parents. Children of Baha’i marriages are not recognized as legitimate and, therefore, are denied inheritance rights.

Law/Case Reporting System:

International Conventions (with Relevant Reservations): Iran signed the ICCPR and ICESCR in 1968 and ratified both Covenants in 1975 without reservations.

Iran signed the CRC in 1991 and ratified it in 1994 with a general declaration and reservation to the effect that the Islamic Republic makes reservation to the articles and provisions which might be contradictory to the Islamic shari’a, reserving the right not to apply any provisions incompatible with Islamic Laws and the international legislation in effect.

Background and Sources: Amin, Middle East Legal Systems, Glasgow, 1985; Haeri, "Divorce in Contemporary Iran: A Male Prerogative in Self-Will," in Islamic Family Law, Mallat & Connors, eds., London 1990; Lawyers Committee for Human Rights, Report of, The Justice System of the Islamic Republic of Iran, Washington DC, May 1993; Mahmood, ‘Iran’ in Statutes of Personal Law in Islamic Countries, 2^nd ed., New Delhi, 1995; Mir-Hosseini, "Mariage et Divorce: Une Marge de Negociation pour les Femmes," Les femmes en Iran: Pressions Sociales et Stratégies Identitaires, Yavari-d'Hellencourt. Paris, 1998; Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared, London, 1993; Pakzad, "The Legal Status of Women in the Family in Iran," in In the Eye of the Storm: Women in Post-Revolutionary Iran, Afkhami & Friedl, eds., London, 1994; Ramaz, ""Women in Iran: The Revolutionary Ebb and Flow," Middle East Journal, vol. 47, no. 3 (1993): 409-428; Redden, ‘Iran’ in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990; Taleghani, ed. & trans. Civil Code of Iran, Littleton, Colorado, 1995.

Legal System/History	Ruled by series of dynasties for 2,500 years. Shi’ism declared official religion of Iran under Safavid rule (1501-1722). Increasing influence of European powers, beginning with capitulations to Russians, in 19^th century. 1906 first Constitution promulgated. Series of laws enacted thereafter, relating to criminal, civil, commercial, and family law. By 1936, legislation made secular education requisite for serving judges. Major changes introduced in area of family law under Reza Shah with passage of Family Protection Law 1967 (significantly amended 1975) abolishing extra-judicial divorce and requiring judicial permission for polygamy and only for limited circumstances. 1979 Revolution brought end to Pahlavi dynasty (1925-1979). Supreme Judicial Council issued proclamation directing courts that all un-Islamic legislation was suspended. Council given remit to revise all existing laws to Islamise legal system, with Ayatollah Khomeini’s fatawa serving as ‘transitional laws’. Vilayat al-faqih. Sources of law are Islamic law, constitutional law, legislation, informed sources (e.g., custom, revolutionary principles, etc.).
School(s) of Fiqh	Ja’fari majority, Hanafi minority; also Zoroastrian, Jewish, Christian and Baha’i minorities.
Constitutional Status of Islam(ic Law)	Current Constitution adopted 2^nd-3^rd December 1979; significant revisions expanding presidential powers and eliminating prime ministership in 1989. Article 4 provides that all civil, penal, financial, economic, administrative, cultural, military, political, and any other laws must be based on Islamic criteria; Article 12 provides that official religion is Islam and the twelver Ja’fari school; other schools of law to be accorded full respect and freedom of religious practice, including matters of personal status.
Court System	Constitution provides that chief of Supreme Court and Prosecutor-General must be mujtahids; Special Civil Courts established in 1979 to adjudicate over matters relating to family law, succession and awqaf. Court structure since Revolution: [figures as at 1984] Revolutionary Courts: (70 branches) Public Courts: Civil Courts (205), Special Civil Courts (99), 1^st Class Criminal Courts (86), 2^nd Class Criminal Courts (156) Courts of Peace: Ordinary Courts of Peace (124), Independent Courts of Peace (125), Supreme Court of Cassation (22)
Relevant Legislation	Civil Code 1928-1935 (significant amendments in 1982) [Family Protection Law 1967 repealed] Special Civil Courts Act 1979 1992 law amending regulations on divorce
Notable Features	Marriage Age: Civil Code provides that marriage contracted before puberty is invalid unless authorized by natural guardian with ward’s best interests in mind. When authorized before puberty, minimum age is nine. Marriage Guardianship: marriage of virgin girl (even after puberty) requires permission of father or paternal grandfather; Special Civil Court may grant permission if guardian refuses without valid reason. Marriage Registration: Identity Office must be notified of all temporary or permanent marriages and their dissolution. Marriages between Muslim women and non-Muslim men are not recognized. Baha’i marriages are not recognized. Temporary Marriage: permitted; must be for fixed time period. Polygamy: wife may obtain divorce if husband marries without her permission or does not treat co-wives equitably in court’s assessment. Obedience/Maintenance: subject to classical conditions; wife who is not nashiza may take matter to court if husband refuses to pay maintenance and court will fix sum and issue maintenance order – arrears of maintenance to wife have precedence over all other liabilities against husband; in temporary marriage, wife only entitled to maintenance if contract stipulates such; husband may deny his wife right to work in any profession "incompatible with the family interests or with the dignity of himself or of the wife"; wife’s refusing conjugal relations where husband has contracted venereal disease not deemed disobedience. *Talaq: governed by classical Shi’i law requiring specific formula and two male witnesses; conditional divorce is invalid; 1992 reforms make registration of divorce without court certificate illegal; wife may obtain khol’* divorce in return for consideration of more or less than nuptial gift (mahr); Judicial Divorce: under Civil Code, recission of marriage permitted on following grounds: proven insanity of either spouse; husband’s castration or inability to consummate marriage; defect of the wife interfering with conjugal relations or her total blindness, contracting leprosy or becoming seriously crippled if they existed at time of contract; husband’s inability or unwillingness to pay maintenance, after failure to comply with maintenance order; and in final instance, where continuation of marriage constitutes proven difficulty or hardship for wife, judge may compel husband to divorce wife or grant her a judicial divorce. 1992 amendments extend wife’s access to divorce by addition of following grounds: husband’s non-maintenance for up to six months for any reason; husband’s bad behaviour, keeping bad company, etc. making continuation of married life impossible for wife; husband’s incurable disease constituting danger to wife; husband’s madness in cases where annulment would not be possible according to shari’a; husband’s non-compliance with court order to avoid demeaning or dishonourable employment; husband’s conviction to sentence of five or more years; husband’s addiction constituting a danger to family and marriage (determined by court); husband’s desertion or leaving marital home for six months without legitimate cause (determined by court); husband’s conviction for crime bringing dishonour to family (determined by court); husband’s infertility for five years of marriage or his contracting sexually transmitted disease; husband’s disappearance for six months; and husband’s polygamous marriage without first wife’s consent, if court considers co-wives are not being treated equally. Post-Divorce Maintenance/Financial Arrangements: 1992 amendments extended divorced wife’s financial rights from maintenance during ‘idda and deferred dower, to right to claim compensation for household services rendered to husband during marriage. Child Custody and Guardianship: mother’s custody ends at 2 years for boys and 7 for girls; custody reverts to father if mother remarries. Mother may be granted custody in certain cases if the father is proven unfit to care for the child. Succession: governed by classical law; descendants (how low soever) of predeceased children of propositus inherit in place of their parents. Children of Baha’i marriages are not recognized as legitimate and, therefore, are denied inheritance rights.
Notable Cases
Law/Case Reporting System
International Conventions (with Relevant Reservations)	ICCPR & ICESCR – signature 1968, ratification 1975 without reservations CRC – signature 1991, ratification 1994 with general declaration and reservation