نوع مقاله : مقاله پژوهشی
نویسندگان
1 نویسنده مسئول، دانش‌پژوه سطح۴ جامعه الزهراء، قم، ایران/ استادیار گروه فقهتربیتی، مجتمع آموزش عالی بنت‌الهدی، جامعه المصطفی العالمیه، قم، ایران.
2 گروه فقه و اصول، مجتمع آموزش عالی بنت‌الهدی، جامعه المصطفی العالمیه، قم، ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Objective: Consensual Divorce has become popular in the Iranian judicial system as a new method for dissolving a marriage. However, due to its lack of full compliance with the conditions of Khula divorce, especially the lack of the condition of the wife's aversion and its difference from revocable divorce, it has always faced jurisprudential challenges. The present study aims to analyze the jurisprudential documents for the legitimacy of consensual divorce with the donation of property in the event that the condition of the wife's aversion is not fulfilled, and to provide a solution for its compliance with Islamic rulings. The main question is whether consensual divorce can be legitimated as a revocable divorce or through compensation contracts in the absence of aversion and with the payment of a ransom by the wife.
Method: This study was conducted using a descriptive-analytical method with an Ijtihad approach; thus, by referring to library sources, the opinions of Imami jurists, Quranic evidence, narrations, and jurisprudential rules (such as the rule of negation of hardship and the rule of fulfillment of commitment) were examined and analyzed.
Results: The findings of the study showed that consensual divorce in the absence of aversion is not valid as a divorce of Khula and the husband does not receive a ransom, but if the divorce clause (such as "You are divorced") is used, provided that the conditions are met, it is a revocable divorce and is legitimate. Also, giving compensation in the form of permissible contracts such as peace, Jualah, or a condition included in the contract is valid, based on verse 4 of Surah Nisa (Tib-e Nafs), the rule "Believers must adhere to their commitments and obligations" and the general principles of fulfillment of commitment. The rule of negating hardship is also considered a jurisprudential basis for the permissibility of this type of divorce in cases of hardship.
Conclusions: The results of the study indicate that consensual divorce with the donation of property, assuming there is no aversion, provided that the divorce clause is used and a compensation agreement is concluded in the form of a compensation contracts or with the full consent of the wife, is legitimate from the perspective of Imami jurisprudence and can be considered as a revocable divorce. It is suggested that the Iranian judicial practice in registering consensual divorces be reviewed and specific jurisprudential and legal criteria be developed for it.
کلیدواژه‌ها [English]
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