The mechanism of the matrimonial Separation of Property under the Iranian laws and regulations
The present article has been prepared by Iran Best Lawyer in order to provide you with the analysis of the mechanism of the matrimonial “Separation of Property” under the Iranian laws and regulations.
Summary:
The post-marriage “community property system” or “joint-ownership policy”, as a binding rule in a number of countries, is not regulated under the Iranian law. However, in light of Article 1119 of the Iran Civil Code (the “ICC”), “The parties to the marriage can stipulate any condition to the marriage which is not incompatible with the nature of the contract of marriage, either as a part of the marriage contract or in another binding contract…”.
Therefore, by virtue of the above-mentioned Article, without any binding legal obligation, the spouses could reach a mutual agreement on one of the forms of the “community property system” and/or a tailor made “separation of property” mechanism as an additional and complimentary condition of their marriage contract.
In the absence of the aforesaid condition, at the time of divorce, each spouse remains the sole owner of his/her assets and properties which are acquired before and/or during the marriage.
In the event that the ownership status of a movable property, is a matter of conflict between the spouses, the general policies stipulated in Article 63 of the Law on Enforcement of the Civil Decisions ratified on October 23rd, 1977 (the “LECD”) shall be applied (Sec. 1 (A)).
In the case of dispute over the ownership of an immovable property, the legal owner is the person in whose name the property is officially registered with the Office of Deeds and Properties’ Registration (the “Office”) (Sec. 1 (B)).
There is also an optional “equal division of property” clause written in the official deeds of marriage in the favor of the wife in terms of the equal separation of properties achieved by her husband during the time of marriage (Sec. 2).
The subject of matrimonial gifts and presents should be studied under Article 1037 of ICC for the engagement period and Article 803 of the same law for the gifts and presents given and/or taken by the spouses during wedding ceremony and after the marriage (Sec. 3 (A) & (B)).
There are number of the financial rights in favor of the wife namely the “dowry” and the “cost of maintenance” which could affect the final settlement and outcome of the separation of property after divorce (Sec. 4 (A) & (B)).
GENERAL POLICIES REGARDING MATRIMONIAL “SEPARATION OF PROPERTY” AS REFLECTED IN THE IRANIAN LAW
Movable Property
According to Article 63 of the LECD, “among the existing movable properties in the residential placement of both spouses, the properties which normally and habitually are used by the wife are belong to her and the properties that are normally and habitually used by the husband, are belong to him. The remaining properties shall be considered as the joint assets owned by both spouses unless proven otherwise.”
Please bear in mind that the above-mentioned Article, as one of the general principle of the family law, is merely applicable where no other evidence of ownership exists. For instance, in the event that the proof of purchase (i.e. the receipt or invoice) of a movable property is issued under the name of one of the spouses, this property, even with the exclusive usage for another spouse, shall be considered as the property of the actual purchaser.
In the same manner and by way of priority, the aforesaid general principle does not apply to a movable property with an official deed of ownership (e.g. a vehicle).
Immovable Property
According to Article 22 of the law on Registration of Deeds and Properties, the sole legal owner of an immovable property is an individual that the property has officially been registered under his name before the Office.
In virtue of the above-mentioned provision, an immovable property merely belongs to the legal owner of the latter and the subsequent legal action such as divorce or marriage does not affect the current ownership status of the property.
Equal Dividing Property Clause under the Iranian Law
In the official deeds of marriage as drafted and published by the Office, there is an optional “Equal dividing Property” Clause which could be endorsed by the husband.
According to the above-mentioned clause, in the event that the divorce is not at the request of the wife, and according to the decision of the court, the request for divorce is not due to the wife’s violation of her marital duties or her misconduct, the husband is obliged to transfer one half of his assets or its equivalent obtained during the marital life to his wife.
Please bear in mind that the above-mentioned clause is merely effective and applicable upon written endorsement of the husband and wife evidenced by their signatures in the deed of marriage.
It is noteworthy that the aforementioned clause, as a privilege for the wife, is not applicable to the negative assets of the husband (e.g. his debts and/or overdue installments).
matrimonial gifts and presents
Gifts and presents of the engagement period
According to Article 1037 of the ICC, “Every one of the betrothed parties can, if the proposed marriage is cancelled, claim the restitution of the presents given to the other party or to the parents for the marriage in question. If the presents do not exist in original, the claimant is entitled to ask for their value of the presents which are ordinarily preserved unless the same presents have been destroyed without any fault of the party who was in their possession.”
Gifts and presents given to the spouse during the wedding ceremony and after marriage
The gifts and presents given to the spouse during the wedding ceremony or any time after marriage are governed by Articles 795 to 807 of the ICC under the title of “gift”. In addition to that, the presents, in some circumstances, could be subject to Article 635 of the ICC under the title of the “borrowed items”. However, in practice, the judicial precedent in Iran, tends to carrying out the exclusive provisions of the “gift” (i.e. Articles 795 to 807 of the ICC) for the presents given and/or taken by the spouses.
According to Article 795 of the ICC, the “gift” is a contract in virtue of which the donor gives a property to the donee for free.”
Pursuant to Article 803 of the ICC, the donor may take back the gift, any time, at its own discretion, except in the following circumstances:
- When the donee are the parents or the children of the donor;
- When the gift has been reciprocated and the reciprocated gift has been handed over to donor. In simple words, when the donor receives a gift from the donee in exchange of the principal gift. In this case, the equality of value between the principal gift and the second gift is not a matter of importance;
- When the given gift has passed out of the possession of the donee;
- When a change has been made in the given gift;
In light of the above provisions, the General Civil Bureau of the Judiciary (the “Bureau”), in reply to the below enquiry from one of the branches of the civil court, answered as follows:[1]
Question of the court: “The husband, by referring to the receipts of purchase (which were issued under his name as the purchaser), submitted his petition for restitution of the golds and jewelries that he purchased for his wife, please clarify whether it is possible for this court, after proving that the husband is the actual purchaser of the jewelries, to decide for restitution of the gift items.”
Answer of the Bureau: “If it is proven that the purchased golds and jewelries have been delivered to the spouse as the gifts or borrowed items, in accordance to Article 803 of the ICC or the articles relating to the borrowed items, the golds and jewelries are restitution-able. However, if it is proved that the gifts were donated in exchange of a reciprocal gift, they are not restitution-able.”
The financial rights of the wife which may affect the “separation of property”
Dowry (in Farsi “Mahr” or “Mahriyeh”)
According to the Islamic jurisprudence, dowry is a gift of money or property which the husband pays or obliges himself to pay to his wife at the time of marriage.
In practice and in the modern era, the dowry normally determined by a specific number of gold coins stipulated in the deed of marriage.
Although the wife, immediately after the fulfilment of the marriage ceremony (by signing the deed of marriage) becomes the owner of the determined dowry and can dispose of it in anyway and manner that she may like,[2] It is a common practice in the Iranian society to postpone the payment of the dowry to an unknown time in future.
Customarily, the official request for receiving the dowry submitted by the wife, which should be notified to the husband through a judicial notification, is a serious sign of intention to divorce by wife.
In her petition for divorce, the wife, as one of her financial rights, is entitled to request for the obtainment of her dowry which can be extracted from the property of her husband due to an instruction issued by the court. In the event of non-payment of the dowry by the husband, the court, upon the request of the wife, may order to seize the properties and assets of the husband approximately in proportion to the amount of dowry.
Due to the fact that applying for the unilateral divorce by the wife has a little chance of success in the Iranian courts, in practice and in order to convince the husband for the acceptance of the consensual divorce, the Iranian wives, at the time of divorce, in many cases, forgive a part or the total of their dowries against the consent of their husbands to divorce.
Considering the above, the definite and final separation of property resulting from the divorce, in somehow, depends on the clarification of the payment status of the dowry.
The cost of maintenance (in Farsi “Nafagheh”)
According to the Iranian law[3], the cost and expenses of the wife including the cost of dwelling, clothing, food, furniture in proportion to the social level of the wife, is at the charge of her husband. The wife can refer to the court if her husband refuses to provide her with the cost of maintenance. In such a case, the court will determine the exact amount and will compel the husband to pay it.
In the event that the wife refuses to fulfil her duties, as determined by the law, without a legitimate excuse, she will not be entitled to the cost of maintenance.
Similar to the dowry, requesting for the payment of the delayed cost of maintenance is customarily one of the financial demands of the wife in her petition for divorce. The exact amount of the delayed cost of maintenance as fixed by the court in its decision, could be extracted from the property of her husband.
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[1] Advisory opinion of the General Civil Bureau of the Judiciary No. 206/7 dated April 6th, 1996.
[2] Article 1082 of the ICC.
[3] Articles 1106 of the ICC
