SINCE the early years of the Islamic Revolution of 1979, the rights of Iranian women have been violated in various ways.¹ In addition to the many restrictions imposed openly in the public realm such as forced veiling,² women’s rights in the private realm of the family too were negatively affected when the Family Protection Act was nullified and the Family Courts closed down a few months after the revolution.³ Such restrictive rules and regulations about the family as a social unit have pushed back the country’s progress behind to even what was being practised half a century earlier. Though women’s rights activists have tried to modify some of the gender discriminatory laws during the past three decades, unfortunately, considering the hierarchical legislation system in Iran, they have so far met with limited success.⁴

However, despite the setbacks and hurdles, they have continued their work to educate women to protect themselves from legal gender discrimination. They have also contributed to empowering women, viz. in divorce cases, by insisting on the right of the woman to her mahr (dowry).⁵ Additionally, women have also been encouraged to negotiate their legal rights both before and after marriage. This paper highlights the role of women’s rights activists in employing alternative solution tools for empowering or balancing women’s legal status in the family.

During the past century, Iran has passed through numerous phases of social and political turbulence, affecting the lives of Iranian women both directly and indirectly in different ways.⁶ Family Law is one of the more controversial subjects that has caused immense strain between the Iranian legal system and the various social movements. The first Iranian Civil Code was written between 1928-1934; section seven and eight of this code contained articles on ‘family matters’ which were passed in 1931.⁷

 

Though this first legal family reform in Iranian history tried in a moderate way to regulate family relations, it was unable to introduce fundamental changes in the lives of Iranian women. For instance, under this law, men were allowed to divorce their wives at their discretion without even an obligation to inform the wives of their intention, far less seek their agreement.⁸ Accordingly, a man could walk into any civil bureau, deposit his wife’s mahr amount in the bureau’s safe box and ask the registrar to register the divorce.⁹ He could later notify his ex-wife himself or through a messenger that she had been divorced and therefore needed to leave his domicile.

For decades after the promulgation of the Civil Code, women continued to voice their objection to the provisions, claiming they were based on a fundamentalist interpretation of Islamic law. However, once women were enfranchised, activists were able to turn their attention to family laws. The inauguration of the 1963 White Revolution¹⁰ represented a turning point in Iranian industrial development and the expansion of the labour market. This growth paralleled the enactment of laws to enable women to move beyond the household and facilitate their entry into paid employment.¹¹ The Family Protection Law (FPL) of 1967, subsequently revised in 1975, was one of the major developments of the period; however, it too was not satisfactory.

 

The divorce provisions of the FPL were a step towards realizing women’s rights, even though most beneficiaries were economically advantaged women. In a departure from Islamic fundamental traditions, the new law required that all divorces be decided by the newly established Family Protection Courts, not Islamic jurists. Under this new system, men were unable to divorce at will, as had so far been customary; they now needed to present valid reasons when petitioning for divorce. Similarly, whereas women previously had limited rights to ask for divorce, their legal status was now made comparable to those of men, i.e., they had equal rights in submitting valid divorce requests.¹² Subsequent amendments in 1975 further recognized the right of Iranian women to seek divorce on their own through the Family Protection Courts. This transformation, clarified in Article 8 of the FPL, is counted among the most important steps towards legal gender equality with regard to divorce in Iran.¹³

 

The 1979 Islamic Revolution saw the inauguration of a new political, social, economic, cultural and legal era in the lives of the Iranian people in general and, in particular, it opened up a new chapter for Iranian women.¹⁴ Following the revolution, Iranian women lost even the limited rights they had achieved in the past few decades and their legal status in the family saw a dramatic backward shift.

In less than a month after the revolution, the Family Protection Courts were closed down and Iranian men regained the right to decide their marital status by themselves: Ayatollah Khomeini abolished the Family Protection Law on 26 February 1979.¹⁵ Article 1133¹⁶ of the Iranian Civil Code of 1931, which gave men the unconditional right to divorce at any time, was re-instituted.¹⁷ Similarly, article 1130 of 1931, which related to Iranian women’s right to divorce, once again became effective.¹⁸

 

Unwilling to quietly accept this situation, Iranian women have for the last three decades been involved in a struggle to fight for their rights. This movement focuses on certain goals, especially the need to reform the Iranian legal system in order to eliminate gender discriminatory rules and regulations in Family Law, the Islamic Penal Code and Iranian Constitutional Law. The fundamentalist government and parliamentary structure is, however, hostile to any Iranian social movement for equality. As is the case with other political, social and human rights activists, Iranian women’s rights activists too face oppression, arrest and serious charges.¹⁹ Undeterred, the activists continue to ceaselessly work for equality in all aspects of women’s lives, especially legal. More recently, fresh campaigns for legal change regarding gender equality have been launched, Change for Equality being one of the more successful ones.²⁰

 

Despite their many limitations, Iranian women’s rights activists have managed to establish a strong network to raise awareness in society. One of their more noteworthy achievements is the introduction of alternative solutions to help bridge the legal gap between men and women, as also prevent legal gender discrimination in the family.

One example is the promotion of alternative dispute resolution for women who would like to seek divorce, but lack legal rights. This alternative solution basically involves a process of negotiation with the husband and/or his legal representative in order to get his agreement to divorce his wife in return for the wife agreeing to forego her mahr claim.

It is undeniable that helping a woman to leave her husband without any financial security or share is neither wise nor safe. But in a legal system like that of Iran, where a woman does not even have the basic right to decide whether or not to continue living with her husband despite being abused, getting a divorce and gaining freedom can be considered a relief. Many women who find themselves in such an unbearable situation welcome any opportunity to regain their individual freedom.

Of course, many women, especially if not educated and without a job, may be left even more vulnerable. In some cases they may have to go back to live with their parents; in some others, they may even marry another man just to receive financial support. Fortunately, since the growth of the civil movement in Iran, many women’s rights activists now dedicate their time and energy to empower Iranian women in the private and public realms. There are even a few organizations offering assistance to independent women who have to support themselves and their children.

 

Another strategy involves signing a separate contract, in addition to the marriage contract either at the time of marriage or subsequently, to ensure equal legal rights for women so as to prevent legal discrimination in future married life.

These alternative solutions are the joint work of feminists educated in law and women’s rights activists. By publishing articles and encouraging debate in society through their personal and social networks,²¹ they have helped promote the practice of alternative dispute resolution in family cases where the woman has little legal standing. They have also popularized the use of separate contracts, besides the marriage contract, to enhance women’s legal status in potential future family disputes.²²

 

Article 1119 of the Iranian Civil Code,²³ permits the parties to agree to any conditions in their marriage contract or draw up a separate contract at the time of marriage, as long as the conditions contained do not violate the basic marriage contract.²⁴ This provision was used by feminist lawyers and reformist clerics²⁵ to restore some legal rights of Iranian women in the family such as child custody,²⁶ right to work,²⁷ right to study,²⁸ right of choosing domicile,²⁹ financial rights and, more importantly,³⁰ the right to divorce.³¹

 

Under the Iranian Civil Code, divorce is a legal right vested only in the husband, and is not transferable to the wife. This is because under Sharia law the right to divorce is given only to the husband; the wife does not have this right even if the husband agrees. In other words, divorce is an unilateral rather than a two-sided agreement. However, Iranian feminist lawyers, with the assistance of the reformist clergy, have managed to find a solution to transfer the right to divorce to the wife as one of the conditions of marriage.³²

This involves adding a clause to the marriage contract, or inserting a separate binding contract, granting the wife the legal right to apply for divorce on behalf of her husband; i.e., the wife has the husband’s consent to apply his right to divorce when she wishes to opt out of married life.³³ Fortunately, this solution has found favour with women of various social classes and age groups, in particular, from educated, middle class, urban families.

Over the years, with the establishment of the Iranian women’s rights movement via different campaigns and use of internet networks and virtual communication methods, a larger number of families have begun educating themselves about these revised conditions of marriage.³⁴ This is particularly true of young couples.

 

The new Iranian generation is distinct from the older one in many ways, including in its attitude to social or family norms. This is hardly surprising because more than 65% of Iran’s population is under 35 years of age, and over 63% of university students are female.³⁵ Such a shift in a country like Iran has resulted in many deep and fundamental changes in values and social behaviour. The young educated couples of today are more critical of traditions that are not compatible with modern life. Similarly, even young women from traditional backgrounds but who have received post-secondary education, having witnessed the hardship faced by their mothers’ and grandmothers’ generations in their everyday lives, now want to know more about their rights in their own married lives.

 

Often however, couples cannot easily share their decision with their families due to social and cultural barriers. Conservative families usually disagree with young couples, forcing them to behave more traditionally. In such cases, the women’s rights activist lawyer might suggest that the client follow tradition, but insist on a high mahr for the bride at the time of marriage. Subsequently, after the ceremony, this condition can be changed. After marriage, the lawyer will prepare a separate binding contract in which the wife will have equal legal rights. Then in front of a notary public, the wife will formally state that she gives away her mahr to the husband and has no further claims, and simultaneously the husband will sign a separate contract amending the marriage contract and pass on the equal legal rights to the wife, including the right to divorce.³⁶ In this way, the alternative resolution attempts to balance the legal status of women and prevent gender legal discrimination against them in their future family lives.

 

As a result of increased awareness in society, particularly after this alternative solution found acceptance, even couples who have been married for many years have begun to ask lawyers to prepare a separate binding contract to counter legal gender discrimination in the family. In such cases the wife agrees to forego her mahr if it is of considerable financial value, and in return the husband signs a separate contract amending the original marriage agreement.

At first glance this may appear a bad bargain. With the woman giving up the mahr, she may not only be left without financial security, but also lose out on financial compensation for the years spent with her husband. So, can we call such an outcome successful, and celebrate it as a tool to improve the bargaining position of women seeking divorce? In order to answer this question, we need to understand the legal and cultural norms that were established in Iran after the Islamic Revolution.

Moreover, due to the dedicated work of activists, there is today greater social awareness about the alternative solutions for resolving family matters under the existing legal system by use of separate legal contracts which make the relationship legally equal. These contracts can include any type of agreement, such as dividing assets after divorce or death, or giving custody of children to the mother even after the age of seven. The irony is that though such contracts are accepted by Sharia law, cultural resistance in practising them continues in the public realm.

 

Women’s rights activists are trying to educate society, including men, women, parents and the youth about the benefits of separate contracts. They explain that by entering into such a contract, the wife and husband will be legally equal; that the man will not lose his rights, but only give the same rights to his wife. Moreover, the proposed arrangement is also beneficial to the man as he now no longer needs to worry about his wife claiming her mahr; earlier, if unable to meet his mahr obligations, he would be arrested or otherwise penalized. Such incentives help endorse the use of alternative contracts.

Ever since the Islamic Revolution diminished their status in Iranian society and subjected them to unfair treatment in legal matters, women have faced tremendous difficulties. However, they have also shown resilience. Many courageous individuals have spoken up for women, not least among them women’s rights activists who have done a great deal to empower women by seeking outlets in the legal system. Despite the restrictive doctrines of the Constitution, their work inspires hope by showing that unrelenting pressure on the authoritarian forces and creative management of the means at hand, can bring about significant gains and further the movement for greater gender equality.

 

Footnotes:

1. Mehri Honarbini-Holliday, Becoming Visible in Iran: Women in Contemporary Iranian Society. Tauris Academic Studies, New York, 2008, at 45.

The Islamic Revolution in 1979, supported by the masses, speedily and rigorously revitalized the Islamic forms of patriarchy which clerics believe was undermined by the Pahlavi dynasty (1925-1979) and its programmes of modernization and secularization. This reversed most of the pre-revolution legal reforms at the cost of disillusioning a great many intellectual and secular supporters of the revolution.

2. Jane Howard, Inside Iran: Women’s Lives. Mage Publishers, Washington D.C., 2002, at 28-29.

Hijab was officially defined in 1980 by the Council of the Revolution as ‘covering of the head and all the body except for the circle of the face and hands from the wrist.’

3. Mehrangiz Kar, Legislations About Women in Iran. Baran Publisher, Stockholm, 2006, at 43-44 (translated by the author).

4. Mehrangiz Kar, Constitutional Obstacles to the Realizations of Human Rights and Democracy in Iran. Unpublished, archived at Harvard Law School Library, 2008, at 62.

According to Article 71 of the Constitution, ‘The Islamic Consultative Assembly can enact laws on all matters within the limits specified by the Constitution.’ This is qualified by Article 72, which explicitly states, ‘The Consultative Assembly cannot enact laws contrary to the principles and rules of the official faith of the country and or the Constitution. This will be decided by the Guardian Council in the manner set forth in Article 96.’

5. Iranian Civil Code, 1931, c7. Article 1078 to 1101.

6. Alidad Mafinezam and Aria Mehrabi, Iran and its Place Among Nations. Praeger Publishers, Westport, CT., 2008, at 4.

Such an attempt requires revisiting the constitutional movement of 1906-1911, which aimed to build a law-based political order in Iran; the Pahlavi era, which in the period 1921-1979 advanced the economic development and modernization of the country; and the period from the revolution of 1979 to the end of the 20th century, and in turn, to the present, which is best characterized as an attempt at mixing religious rules as defined by the Shia clergy’s idiosyncratic version of Islam on the one hand, with republicanism, based on elected offices and public representation on the other.

7. Mehrangiz Kar, Legal Structure of Family System in Iran. Roshangaran Women’s Studies Publishers, Tehran, 2008, at 34 (translated by the author).

8. Iranian Civil Code, 1931, c7. Article 1133: ‘A man can divorce his wife whenever he wishes to do so.’

9. Mehrangiz Kar, Islamic Law and the Desecularization Process: The Reconstruction of the Sharia in Iran’s Judicial System. Ketab Corp, Los Angeles, 2006, at 186 (translated by the author).

10. Homa Hoodfar, The Women’s Movements in Iran: Women at the Crossroads of Secularization and Islamization. Women Living Under Muslim Laws, Grabels Cedex, France, 1999, at 18.

Despite these organizational developments, no major legal or social changes took place between 1936 and 1963 when the enfranchisement of Iranian women was approved in a national referendum along with land reforms and several other major policies as part of the White Revolution.

11. Hammed Shahidian, Women in Iran: Gender Politics in the Islamic Republic. Vol 2. Greenwood Press, Westport, CT, 2002, at 39. The gradual decay of the traditional economy and rapid expansion of capitalism after the reforms of 1962 increased women’s participation in the formal sector of the economy.

12. Hammed Shahidian, ibid., at 137.

13. Iranian Family Protection Law, 1975, Article 8: ‘The prescribed words (Sîghah) of divorce shall be pronounced after the court has considered the relevant case and issued a certificate of non-reconciliation between the parties.

A person desirous of obtaining the aforesaid certificate of non-reconciliation between the parties shall apply to the court for issuing him or her such certificate.

The applicant should also mention the exact reasons for obtaining the aforesaid certificate.

On receipt of the application, the court shall directly, or, if it deems necessary, through an arbitrator or arbitrators, endeavour to bring about a compromise between the husband and wife, and prevent the occurrence of a divorce.

In case all the efforts of the court to bring about a reconciliation fail to bear the desired result, the court shall issue a certificate of non-reconciliation between the parties.

On receipt of the aforesaid certificate, the Divorce (Registration) Office shall take necessary action for the pronouncement of the divorce and its registration.’

14. Jane Howard, Inside Iran: Women’s Lives. Op cit., at 26.

The legal system touched almost every aspects of women’s life from cradle to grave. A mixture of Islamic Sharia, revolutionary regulations and an earlier civil code, the law is usually incapable as also often contradictory.

15. Hamideh Sedghi, Women and Politics in Iran: Veiling, Unveiling, and Reveiling. Cambridge University Press, New York, 2007, at 201.

16. Iranian Civil Code, 1931, c7. Article 1133: ‘A man can divorce his wife whenever he wishes to do so.’

17. Mehrangiz Kar, Legislations About Women in Iran. op cit., at 81-87 (translated by the author).

18. Iranian Civil Code, 1931, c7. Article 1130: ‘In the following circumstances, the wife can refer to the Islamic judge and request for a divorce. When it is proved to the court that the continuation of the marriage causes difficult and undesirable conditions, the judge can for the sake of avoiding harm and difficulty compel the husband to divorce his wife. If this cannot be done, then the divorce will be decreed by the permission of the Islamic judge.

19. Elaheh Amani, ‘Iran Women Rights Defenders Continue Undeterred by Prison Detention’, Women’s News Network, March 2010, online: Women’s News Network < http://womennewsnetwork.net>

http://womennewsnetwork.net/2010/03/03/iranprisonwomen891/

20. Examples include, ‘Right to Pass Nationality: Iranian Mother, Iranian Child’, ‘Say No to Draft of Family Law’, ‘Stop Stoning Forever Campaign’, ‘Open Stadiums to Women Audience’, ‘Young Lawyers Campaign for Gender Equality in Family Law’, ‘One Million Signatures Demanding Changes to Discriminatory Laws’, ‘Say No to the Social Security Draft’, ‘Say No to Gender Division Share for Post-Secondary Education’ and ‘Feminist Criticism on Draft of Islamic Penal Code.’

21. Roza Eftekhari, ‘Zanan: Trails and Success of a Feminist Magazine in Iran’, Middle Eastern Women on the Move. Woodrow Wilson International Center for Scholars, Washington DC, 2003, 15 at 19.

Along with critical religious discussions, which generally were intended to offer a particular reinterpretation of religion, Zanan attempted to offer its readers a theoretical discussion.

22. Fereshteh Nouraie-Simone, ‘Shirin Ebadi: A Perspective on Women’s Rights in the Context of Human Rights’, in Fereshteh Nouraie-Simone (ed.), On Shifting Ground: Muslim Women in the Global Era. Feminist Press at the City University of New York, 2005, 267 at 271.

Education is the only key to fighting discrimination and bringing about change. We need to educate our men and women from elementary school to make them aware of their rights and teach them to respect the rights of others.

23. Iranian Civil Code, 1931, c7. Article 1119: ‘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 part of the marriage contract or in another binding contract; for example, it can be stipulated that if the husband marries another wife, or absents himself during a certain period, or discontinues the payment of cost of maintenance, or attempts to take the life of his wife, or treats her so harshly that their life together becomes unbearable, the wife has the right to transfer to a third party by power of attorney to obtain a divorce herself after establishing in the court the fact that one of the foregoing alternatives has occurred and after the issue of a final judgment to that effect.’

24. Seyed Hossein Safayi and Asadollah Emami, Family Law. Vol 2. Tehran University Publication, Tehran, 2000, at 247 (translated by the author).

25. Roza Eftekhari, ‘Zanan: Trails and Success of a Feminist Magazine in Iran’, Middle Eastern Women on the Move, op cit., 2003, 15 at 17-18. A young cleric by the name of Mohsen Saidzadeh who was familiar with various religious debates and sources wrote Zanan’s juridical material. The importance of this material, in addition to its analytical content, was the clarity and simplicity with which it was presented. By referring to a variety of sources and by relying on a variety of jurist options in various eras, Saidzadeh showed with certainty that there is no unanimity regarding women related religious commands, and second, that these commands must change on the basis of the needs of the time.

The discussion of women related jurisdiction in a simple language extended the debate to wider audiences. It allowed experts and writers active on women’s issue to begin critiquing the existing legal inequalities in a more open way. This critique of existing laws was presented along with juridical discussion and mostly written by Mehrangiz Kar, the capable female lawyer and writer. Saidzadeh and Kar, one a male religious secular and the other a feminist intellectual – side by side – pursued the discussions regarding women’s related jurisprudence and law.

26. Iranian Civil Code, 1931, c8. Article 1169.

27. Iranian Civil Code, 1931, c8. Article 1117: ‘The husband can prevent his wife from occupations or technical work which is incompatible with the family interests or the dignity of himself or his wife.’

28. Iranian Civil Code, 1931, c8. Article 1117.

29. Iranian Civil Code, 1931, c8. Article 1114: ‘The wife must stay in the dwelling that the husband allots for her unless such a right is reserved to the wife.’

30. Iranian Civil Code, 1931, c8. Article 1108: ‘If the wife refuses to fulfil duties of a wife without legitimate excuse, she will not be entitled to the cost of maintenance.’

31. Mohsen Saeidzadeh, ‘A Separate Binding Contract Beside Marriage Contract or High Maher?’ Zanan, vol. 20, January 2005, 5 at 5 to 10 (translated by the author).

32. Interview of Mehrangiz Kar, 21 March 2010.

33. Ibid.

34. Mehri Honarbini-Holliday, Becoming Visible In Iran: Women in Contemporary Iranian Society. Op cit., at 130. ‘The Change for Equality Campaign is meaningful to me and millions of others because of these reasons. With the help of legal experts and advisors, both men and women, we are able to learn from real situations within the family and the social system by highlighting real cases in courts. The campaign has legal articles online, and a member of other women’s websites regularly publish relevant material for the ongoing discussion of these issues through weblogs. All this is a teaching system for me as a lawyer. But the campaign also understands that there are those men and women with work and children who can not access the internet. This is where activists like me can help. We are all trained in workshops and have leant and practiced how to communicate the aims of the campaign face-to-face with individuals. As activists, we might work individually or in small groups, male and female, and go to different parks and cultural centres and bus stations, and even engage with people we meet in taxies. We want to increase understanding and rectify the legal system through legal and peaceful means.’

35. Fereshteh Nouraie-Simone, ‘Shirin Ebadi: A Perspective on Women’s Rights in the Context of Human Rights’, in Fereshteh Nouraie-Simone (ed.), On Shifting Ground: Muslim Women in the Global Era. Feminist Press, City University of New York, 2005, 267-271.

36. Interview with Mehrangiz Kar, 21 March 2010.