The Position of a Woman s Will in Divorce in Iranian Law and Hanafi Jurisprudence

Abdulwahid Ashori¹

1) Master of Private Law, Al-Mustafa International University, Gorgan Branch

IOI Code : AADH-ABACEZ
Publication : The second international conference on new researches in management, law, humanities and entrepreneurship(icmlhe.ir/2nd)
Abstract :
    The institution of divorce, as one of the methods for dissolving the marriage contract, holds a sensitive and exceptional position in Iranian law and Hanafi jurisprudence. Although divorce is fundamentally recognized as a unilateral legal act and an exclusive prerogative of the husband, the essential question arises: can the woman also play a role in the dissolution of marriage? The present research, with an analytical and comparative approach, examines the position of the woman s will in divorce within the Iranian legal system and Hanafi jurisprudence, and attempts to analyze the existing legal and jurisprudential capacities for the entry of the wife s will into the divorce process. In Iranian law, although the foundation of divorce is based on the husband s will, by utilizing the rules of Imami jurisprudence, solutions such as requesting divorce in cases of hardship, failure to pay maintenance, prolonged absence of the husband, as well as obtaining power of attorney for divorce and contractual divorce have been provided to exercise the woman s will. Also, in Hanafi jurisprudence, despite emphasizing the man s authority in divorce, cases such as khul , delegation or authorization of divorce, and requesting divorce under specific circumstances such as misbehavior, failure to provide maintenance, or the husband s absence have been considered as ways for the entry of the woman s will. The result of the research shows that although in both legal and jurisprudential systems, the authority of divorce is primarily in the hands of the man, numerous jurisprudential and legal tools have been identified for the involvement of the woman s will in divorce, which can be used to realize family justice and support women s rights. Therefore, the woman s will in divorce is not negated, but is subject to specific conditions and regulations, the precise recognition and analysis of which has been the goal of this research.

Keywords : will divorce khul hardship jurisprudence and law