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Islamic Marriage Contract United States

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Islamic Marriage Contract United States Powered By Docstoc
					Marriage Laws and the
       Disabled
 A Comparison between the United
    States, ADA, UN, and Iran
         Marriage, What is it?
1: the state of being
  united to a person of
  the opposite sex as
  husband or wife in a
  legal, consensual, and
  contractual
  relationship
  recognized and
  sanctioned by and
  dissolvable only by
  law
History on how laws have
        changed…
                Eugenics
 First eugenic law: Indiana, 1907
 Forced Sterilization was legal in 18 States,
  WITHOUT consent of the individual.
 “The U.S. practice of neutering ``mentally
  defective'' individuals was backed by most
  leading geneticists and often justified on
  grounds that it would relieve the public of
  the cost of caring for future generations of
  the mentally ill.”
 U.S. ended its practice with eugenic laws
  in the 60s.
          Why get married?
 Love, Religion, Starting a Family
 Tax Benefits- i.e. a shared income, lower
  tax liability, credits for education, and
  dependents.
 HOWEVER, many people with disabilities
  lose much of their funding from their new
  legal status.
    Marriage and the Constitution




 Marriage is not mentioned in the United
  States Constitution.
 Amendment 14 states that “No state shall
  make or enforce any law which shall
  abridge the privileges or immunities of
  citizens of the United States”
           State Marriage Laws
   “When the legal
    capacity and
    consent of both
    parties is present,
    establishes their
    relationship as
    husband and wife
    and which is
    recognized by the
    state as a civil
    contract”
      What is Legal Capacity?
 What is reason?
 There is no universal legal test of mental
  capacity or incapacity.
 Normally a two part test.
 1. Some type of disability must be verified.
 2. There must be a finding that the
  disability prevents the person from
  performing activities essential to take care
  of his or her personal needs or property.
      Can they or Can’t they?
 Depends on if the person is under
  guardianship
 If not, then the heterosexual couple can
  marry.
 If under guardianship, the court that
  determined the need for the guardian
  must be petitioned.
 Why?
    Universal Declaration of Human
           Rights- Article 16

 Men and Women of full age, without any
  limitation due to race, nationality or
  religion, have the right to marry and to
  found a family. They are entitled to equal
  rights as to marriage, during marriage and
  its dissolution.
 Marriage shall be entered into only with
  the free and full consent of the intending
  individual.
    Universal Declaration of Human
          Rights Continued….

   No marriage shall be legally entered into
    without the full and free consent of both
    parties, such consent to be expressed in
    person after due publicity and in the
    presence of the authority competent to
    solemnize the marriage and of witnesses,
    as prescribed by law.
           Marriage in Iran
 Marriage is a type of business contract for
  the selling of a woman’s body for the
  production of children
 Children are often a stipulated clause of
  these contracts, which can be long term or
  temporary arrangements.
 A dower system continues to be in effect.
 While Iran’s marriage law does not
  specifically address disability, their
  “dissolution” statues do....
       History of Law in Iran
 Islamic Law, constitutional law, legislation,
  and informed sources such as customs.
 Applicable legislation on Marriage law
  comes from Iran’s Constitution, the 1989
  Family Protection Act, and Iran’s Civil
  Code, which specifically addresses
  disability when discussing permissible
  grounds for the dissolution of a marriage.
       The Hard Laws of Iran- the
              Constitution

   Article 10: Since the family is the most
    basic unit of Islamic society, all rules and
    regulations regarding family should serve
    the purpose of preservation of family and
    its relations based on Islamic rights and
    morals.
     1989 Family Protection Law

   “leaving men’s absolute rights to divorce
    intact but stipulating that men are
    required by law to provide a sound
    argument to the court, which the court
    can reject if it does not comply with
    sharia. The result is to give women
    greater power over marriage contracts.”
   Women and men continue to have
    unequal divorce rights in Iran- men have
    absolute divorce rights so long as they
    “provide a sound argument to the court”
    whereas women’s divorce rights are
    limited to contract violations.
   “Men are the
    protectors and
    maintainers of
    women, because
    Allaah has made
    one of them to
    excel the other,
    and because they
    spend from their
    means” [al-Nisaa
    4:34]
    What Iran’s “Dissolution Laws”
    mean for people with disabilities
   Civil Code: “any physical defect, in
    husband or wife, is legal grounds for
    claiming dissolution…”

   “proven insanity of either spouse; the
    husband’s castration or inability to
    consummate marriage; defect of the wife
    interfering with conjugal relations or her
    total blindness, contracting leprosy or
    becoming seriously crippled if they existed
    at time of contract…”
        Dissolution continued…
   This law makes it clear that mental and
    physical disabilities are grounds for
    claiming the dissolution of a marriage in
    Iran
    The Civil Code and Disability-
          implied soft law
 A physically disabled man from a wealthy
  family, so long as he can consummate the
  marriage, can purchase a wife and
  procreate legally.
 A man can buy immunity from this
  stipulation.
 The social role assigned to women within
  Islam would make a similar arrangement
  for a disabled woman unlikely.
            Defining Disability
 Inability to fulfill
  social role (providing
  for family, spouse)
 Social class (status,
  money)
 Gender
              Case Examples
   The Epileptic Wife

   The boy with Cerebral Palsy
    Iran’s Marriage Law vs. Marriage
        Law in the United States

 Rights/Responsibilities of Men and Women
 Dissolution based on disability
 Protection against Discrimination
 Abortion
    Iran and the UN Declaration of
       Human Rights- Article 16
 ALL Men and Women vs. the inequality of
  Men and Women
 Equal Access to the Contract vs. Status
 Negative Paradigm of people with
  disabilities and marriage
 Consent
    US and the UN Declaration of
           Human Rights
 The current hard law holds true
 Men and Women receive equal rights
  under the contract of marriage
 Both parties must have full consent upon
  entering the agreement
              Conclusion
 Hard law does not necessarily indicate
  social policy
 Between a man and a woman
 Full legal capacity
 Civil Contract
 Family and children are procured

				
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