Document Type : Original Article
Authors
1
P.h.D, Faculty of Law, Shahid Beheshti University, Tehran, Iran Corresponding Author Email: mybestgod1@gmail.com
2
Associate Professor, Family Research Institute, Shahid Beheshti University, Tehran, Iran
10.48308/jlr.2023.231368.2479
Abstract
Introduction
Marriage is divinely ordained as a sacred bond between a man and a woman for the establishment of a stable family. Nevertheless, the stability of the family may be threatened by challenges that affect the continuity of love or marital relations. Although divorce is generally disfavored, it is permitted as a last resort to end an unsuccessful marital relationship. Divorce does not always align with the objectives of Islamic law, nor is it always accompanied by the full payment of the wife’s rights. It is common for men to issue divorce without legitimate cause, resulting in significant social issues, including homelessness for divorced women and their children. Provision of housing for divorced women and their children under custody has largely been neglected in legislation, despite the fact that the right to housing is a fundamental and essential right closely linked to a woman’s dignity, personality, and status, which Islamic law strongly recommends. The rising rate of divorce and the displacement of numerous women with their children necessitate a legal review and the enactment of precise protective regulations. The approval of the protection rights of the divorced wife also has a preventive role in divorce and ultimately leads to a decrease in the number of divorces because if the man knows that the divorced woman is under the protection of the law and that in the event of a divorce without a valid reason, he will be obliged to provide her house, he will make a decision with reflection and foresight.This study seeks to answer the question: Is the right to housing for divorced women, based on Quranic verses, Hadiths, and rational arguments, recognizable under Iranian law? To address this question, the concept of housing (Sakani), the conditions for entitlement, and instances of non-entitlement were examined in the legal systems of Iran, Iraq and Algeria.
The primary objective of this research is a comparative examination of the right to housing for divorced women in the legal systems of Iraq and Algeria with that of Iran, aiming to propose protective measures to prevent homelessness resulting from unjustified divorces in Iran. Iraq and Algeria were selected because their legal frameworks, like Iran’s, are derived from Islamic law and share common jurisprudential foundations. However, both countries have specific protective mechanisms regarding the housing rights of divorced women, which can provide a basis for comparison and potential solutions for Iranian law. The Iraqi legislature, in the 1983 Right to Residence Law, has provided for the right of a divorced woman to reside for three years under certain conditions and the Algerian Family Law, amended in 2005, has also provided for the right of a divorced woman who has custody of children to claim housing or receive rent. Such provisions aim to reduce the harms and suffering caused by unjust divorce.
Methods
This study is analytical and comparative in nature. Data were collected from legal sources, including the Iranian Civil Code and the Family Protection Law, as well as jurisprudential sources, Quranic verses, and authentic Hadiths. In the comparative section, the 1983 Iraqi Housing Rights Law and the 2005 amended Algerian Family Law were analyzed. Data were examined through content and comparative analysis to identify the strengths and weaknesses of Iranian law. The research considers legal, social, and human dimensions, allowing an evaluation of the effectiveness of legislation and its alignment with principles of justice and human dignity.
Results and Discussions
Analysis of Iranian laws reveals that legal protection of divorced women’s housing rights is limited and insufficient. Article 38 of the Family Protection Law and related provisions grant the right to housing only under specific conditions and time constraints, without effective enforcement mechanisms. Custodial divorced women, responsible for their children, face serious economic and housing challenges in the absence of practical enforcement measures. In Iraq, under the 1983 Housing Rights Law, a divorced woman may reside in the marital home for up to three years. This legal protection ensures women’s dignity, economic security, and prevents psychological harm. In Algeria, the 2005 amended Family Law guarantees the right to housing or rental payment for custodial divorced women. These laws not only support women but also serve as a deterrent against misuse of child custody rights by spouses. It is recommended that legislators, drawing on jurisprudential principles and experiences from other legal systems, enact clear and independent regulations regarding the housing rights of divorced women, particularly those with child custody, and recognize it as a right distinct from child support. Effective enforcement mechanisms should also be established to oblige the husband to provide housing or pay rent, thereby preserving the woman’s dignity and ensuring the children’s rights are adequately protected.
Conclusion
The study concludes that Iranian laws regarding the housing rights of divorced women, particularly custodial divorced women, require serious reform and effective enforcement mechanisms. The experiences of Iraq and Algeria demonstrate that legal recognition of housing rights and their enforcement have significant positive effects in supporting women and children. Legislators, taking into account custody status, the husband’s financial capacity, and the divorced woman’s dignity, can draft efficient laws to secure family well-being, children’s welfare, and social justice
Highlights
- This study examines the right of divorced women to residence in Iran, Iraq, and Algeria.
- Iranian law only allows residence during the ‘iddah’ period and lacks enforcement, while Iraqi and Algerian laws provide effective protections for women with custody.
- The study emphasizes the need for independent regulations in Iran to guarantee residence rights for custodial divorced women and to support women’s dignity and family.
Keywords
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