قوانین مربوط به ازدواج در ایران و استرالیا ©Dr Hossein Esmaeili, Flinders University Adelaide 2009 (15 Shaban 1388) Persian Academic and Cultural Association in Adelaide (PACANIA)

تعریف ازدواج در ایران و استرالیا Marriage Act 1961 (Cth), s 5(1) defines marriage as ‘...the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ در قانون تعریف نشده است مساوی عقد شرعی می‌‌باشد

موانع ازدواج Article Marriage with the following relations by blood is forbidden, even if the relationship is based on mistake or adultery: 1- Marriage with father or grandfather, mother or grandmothers, or to their ancestors to whatever generation. 2 - Marriage with children, or descendants to whatever generation. 3 - Marriage with the brother and sister and their children, or their descendants to whatever generation. 4 - Marriage with one’s own paternal aunts and maternal aunts and those one’s father, mother, grandfathers and grandmothers.

Prohibited relations: Australia The Marriage Act prohibits people marrying: an ancestor or descendant; or their brother or sister (whether whole blood or half-blood siblings) These restrictions also apply to adoptive relationships even if these have been annulled, cancelled, discharged or cease to be effective for any reason (for example, a subsequent adoption order being made). This means, for example, that a person cannot marry their parent, grandparent, child, grandchild, brother or sister. However, (depending of course on the gender of the party) a person may marry their aunt or uncle, niece or nephew or ‘first’ cousin.

Procedural requirements: Australia Before you celebrate your marriage, you must give notice. The notice must be given between 18 months and 1 month and 1 day before the day you intend to celebrate the marriage

عقد

Marriageable age In Australia, both women and men must be 18 years of age. In exceptional circumstances, people who are 16 years of age or older may get married, after obtaining the consent of their parents and a court order.

قابلیت برای ازدواج The marriageable age, according to Article 1041 of the Iranian Civil Code, for girls is 13 years, and for boys is 15 years. However, before those ages, parents may marry their children with observation of their best interests and by obtaining a court order

Marriage by proxy Not available under Australian law Can be done in Iran

Polygamy: تعدد زجات Not allowed in Australia Allowed in Iran, with certain conditions

به ازای هر 100 دختر 105 پسر متولد شد (1388/2009) در چهار ماهه اول امسال، در مقابل هر 100 واقعه ولادت ثبت شده دختر، 7/105 واقعه ولادت پسر به ثبت رسیده است. سعید عبودی در این باره به فارس گفت: «در چهار ماهه اول سال جاری 435 هزار و 267 واقعه ولادت رخ داده است که نسبت به مدت مشابه در سال گذشته 6/5 درصد افزایش داشته است.»

Dowry: صداق Does not exist in Australian law Commonly included in marriage contracts in Iran Works as security for women If it is not mentioned in the marriage contract, and the couple divorces, the woman will be allocated a dowry according to the custom of the society

Inheritance: میراث Distribution of a person’s estate varies from state to state in Australia. Usually the widow/widower will get 50% of the estate, and the children will share the other 50%. If there are no children, the surviving spouse will receive the whole estate. In Iran, the widower will receive 50%, the widow will receive 25% (if there are no children). If there are children, the widower will receive 25%, and the widow will receive 12.5% of the estate.

Responsibilities of marriage In Australia, both parties must equally contribute to the marriage and respect each other. In Iran, couples are responsible to treat each other with respect (s 1103 of Civil Code) S 1105

Maintenance In Australia, it is the responsibility of both parties to the marriage In Iran, the husband has the responsibility to maintain the wife and family.

Divorce In Australia, we have the ‘no fault’ system You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

Divorce in Iran Traditionally, the husband has the right to divorce the wife whenever he wants Currently, there must be a court order Mediation is necessary The wife can apply for divorce

Divorce in Iran A woman may initiate divorce proceedings within the provisions of the Iranian Civil Code, under Article 1133 of the Iranian Civil Code. The wife may obtain a divorce without the husband’s consent according to Article 1130 of the Iranian Civil Code: “If the continuation of the marriage creates an intolerable situation for the wife she can start proceedings of divorce with the court. The court may compel the husband to divorce his wife and if that is not possible the wife will be divorced by the court. Intolerable situations include the following; 1) If the husband leaves the matrimonial home without any justification for six months (continuous) or nine months (accumulated), 2) Addiction to narcotic drugs or alcohol by the husband which creates problems for their basic life and the husband cannot be rehabilitated within a reasonable time, according to medical standards 3) Conviction of the husband leading to a jail term of five years or more, 4) Physical violence, or any abuse by the husband which, according to the limits of propriety, is not tolerable by the wife, 5) If the husband has mental illness, contagious disease, or any medical condition which makes marital life unworkable, These situations are not exclusive, and the court may issue a divorce based on other reasons which make the marriage intolerable.”

Custody of children In Australia, custody will be determined by the court, based on the best interests of the children At the moment the court presumes that the best option is for parents to share custody equally

Custody of children: Iran The mother has custody of the children until the children reach 7 years After the children reach 7 years, the custody will be determined by the court based on the best interests of the children.

Property adjustments In Australia, property will be divided based on a large number of factors, including: Contribution of the parties Number of children Who has custody of the children Age of the parties Health of the parties Education of the parties Other factors

Property adjustments: Iran Before the new marriage documents became common, parties owned whatever was held under their own name The new marriage documents provide that property obtained during the term of the marriage should be equally divided.

Questions and Discussion