A Jurisprudential-Legal Analysis of the Non-Enforceability of the Wife’s Right to Divorce Clause in Marriage Contracts

This study, adopting an interdisciplinary (jurisprudential-legal) approach, examines the challenges arising from enforcing the condition of granting the right of divorce to the wife in marriage contracts. From a jurisprudential perspective, the views of jurists such as Ayatollah Makarem Shirazi and Ayatollah Javadi Amoli indicate that granting this right in an absolute manner violates the principle of male authority and is contrary to the philosophy of legalizing divorce in Islam. Although the rule "the believers are subject to their terms" has a place in jurisprudence, this rule is not applicable in cases where the condition is contrary to the requirements of the nature of the contract. In the Iranian legal system, despite Article 1119 of the Civil Code, conditions that change the basis of the contract, such as the right of a man to divorce, should not be considered enforceable. A review of field statistics also shows that in most cases, women have filed for divorce without a valid reason and solely based on this condition, and men have often been unaware of the legal implications of this condition. This has led to a significant increase in cases of alimony, custody and visitation claims. Also, the lack of a uniform judicial procedure in dealing with this condition has led to numerous administrative problems. The findings of this research, which was conducted using an analytical-descriptive method and based on jurisprudential, legal sources, and field data, show that the absolute validity of this condition is in conflict with the principles of Imami jurisprudence and has left harmful effects on the family legal system. This research, with its innovative approach, can be the basis for decision-making by judges, legislators, and researchers in the field of family law.