The legal regime governing the economic situation of married women in Iran :  a dialogical view from Quebec

Family is the basic unit of society, and is grounded upon social, legal, religious and economic constructs. Depending on cultures and societies, and the often differential treatment they apply to men and women, entering into marriage may deteriorate women’s economic situation. The gender-based division of labor within family, which disproportionally burden women, notably through childcare responsibilities, causes a substantial decline in women’s income and interrupts their education and employment. This makes it difficult for women to have a career for themselves after a separation or divorce. Therefore, there is a general belief that legal principles and laws governing the marital relationship and property rights should be structured to protect women’s economic interests. To establish an equitable economic framework between spouses, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) opts for an egalitarian regime which asks for equal rights and responsibilities for both men and women, during and after the marriage. It rules in favor of a partial community of property between spouses according to which all economic advantages and disadvantages arising from a marriage and its dissolution should be borne equally by both parties.  However, legal regimes differ in outlining the method of contribution each spouse must commit to the household, financial maintenance, and the division of property after a separation or divorce. Some legal regimes, following the CEDAW, emphasize formal equality and grant similar rights and responsibilities to both parties, while establishing a partial community of property. Another group of legal regimes establish the separation of property as the guiding principle for marital economic relationships, wherein the expenses should be borne by men as the heads of the household, whereas women should be compensated for their unpaid contributions to the household. As a country with a Sharia-based Civil law system and a specific cultural background, Iran has its own special matrimonial regime and does not follow the CEDAW’s approach to women and men’s rights and responsibilities. Iran’s matrimonial regime bases itself on Sharia’s approach to men and women, and is anchored in Iranian culture. This accounts for a legal matrimonial system that is different from laws existing in Western countries.  Under this system, the husband and wife have different economic responsibilities. This thesis examines Iran’s matrimonial regime and compares it to the Quebec matrimonial regime. While Quebec family law espouses a contributory approach for both spouses in marital life, all economic institutions under Iranian family law are designed to enforce a compensatory approach toward the spouses’ economic relation. The compensatory approach of Iranian law to the financial aspects of marital life causes some difficulty for the wife, which is exacerbated at the time of the termination of the marriage. Such a comparative study hopes to bring some novel suggestions aiming at correcting certain deficiencies in the current Iranian matrimonial regime. Besides assessing the issues with Iran’s marital regime, this research seeks to propose legal solutions for enhancing the economic rights of women. A holistic approach will therefore be adopted, which will lead us to take into consideration certain cultural and religious specificities which have become mandatory rights in Iran.  The reform proposals put forward in this thesis will thus seek to respond to Iran’s current social context. This study will examine women’s economic situations in marriage, separation, divorce and upon the death of their spouse. It will argue that the cultural specificities of Iranian society and Islamic law must be examined and assessed. It will also analyze women’s economic situation in marital relationships in Iran and Quebec. The study of these two different civil law jurisdictions will focus on the principle of equality and examine related arguments and ideologies regarding women’s rights and responsibilities.

Keyphrases: Iranian Law, Islamic Law, Quebec Family Law, Matrimonial Regime, Contributory System, Compensatory System, Separation of Assets, Family Patrimony, Alimony, Mahr