The Legislator’s Expediency in Protecting Children of Divorce from the Perspective of Islamic Jurisprudence and Iranian Law

Abstract

Children of divorce are more vulnerable compared to other children and require legislative protection. This necessity underscores the importance of examining the legislator’s expediency in protecting children of divorce from the perspective of Islamic jurisprudence and Iranian law. Accordingly, the present article aims to explore the critical question of when and how the legislator has acted based on expediency or referred to it in the protection of children of divorce within this legal and jurisprudential framework. This study employs a descriptive-analytical approach and utilizes a library-based research method to address the research question. Findings indicate that in Islamic jurisprudence, custody rights of parents may be revoked based on the child's best interest under conditions such as habitual immorality (fisq), remarriage of the mother, inability to care for the child, and insanity. These considerations have also been reflected in statutory law. According to Article 1169 of the Civil Code, the mother has priority in custody of children of divorce until the age of seven, after which the father takes precedence unless the best interest of the child dictates otherwise. In matters of guardianship and custody, the child's best interest is paramount; if it is determined that the child should not be placed with either parent, the court assigns custody to a third party who meets all necessary qualifications. Article 45 of the Family Protection Act, enacted in 2012, is a clear example of legislating based on expediency and is rooted in the concept of masalih mursalah (public interest considerations). According to this provision, ensuring the well-being and best interest of children and adolescents is mandatory in all judicial decisions and executive actions.