Legislative Expediency in Protecting Children of Divorce from the Perspective of Islamic Jurisprudence and Iranian Law

Abstract

Children of divorce are more vulnerable than other children and therefore require legislative protection. This necessity highlights the importance of examining legislative expediency in protecting children of divorce from the perspective of Islamic jurisprudence and Iranian law. Accordingly, the present study seeks to address the following important question: In which areas has the Iranian legislature acted on the basis of expediency, or invoked it, to protect children of divorce from the perspective of Islamic jurisprudence and Iranian law? This study employs a descriptive-analytical approach and examines the stated question through library-based research. The findings indicate that, in Islamic jurisprudence, custody may be withdrawn from a parent in consideration of the child’s best interests under circumstances such as a parent’s notoriety for immoral conduct, the mother’s remarriage, inability to care for the child, or insanity. These circumstances have also been recognized in statutory law. Pursuant to Article 1169 of the Iranian Civil Code, the mother has priority in the custody of children of divorce until the age of seven, after which priority is transferred to the father, unless the child’s best interests require otherwise. In matters of guardianship and custody, the child’s best interests take precedence. Where the child’s best interests require that the child reside with neither parent, the court may entrust the child to a fully qualified third party. Article 45 of the Family Protection Act of 2013 constitutes a clear example of legislative consideration of expediency and is based on the doctrine of maslahah mursalah. Under this provision, observance of the welfare and best interests of children and adolescents is mandatory in all decisions made by courts and executive authorities.