الاجتهاد القضائي المعاصر في مسائل الاحوال الشخصية ” دراسة مقارنة”

Contemporary jurisprudence in personal status matters

Abstract

It is considered contemporary jurisprudence in personal status mattersIt is an important matter for Islamic jurists and jurists alike، Because the legislator in many countries is unable to cover all personal status issues .The reason for this is due to two important things . The first matter lies in the legislator’s neglect of including a text that addresses the issue in disputeOr he cited a text, but it was tainted by ambiguity, deficiency, or contradiction.
The second issue lies in the failure of the legislator to keep pace with the development taking place. Whether on the medical, technological or cultural level.
Given that the judge is obligated to issue a ruling on the case before him ، Otherwise, he will be considered abstaining from realizing the right-Therefore, we find that the legislator referred the judge to the principles and opinions of Islamic Sharia jurists in accordance with Article 1 of the applicable law. Thus, the door is opened for the judge to reach a ruling and fill the legislative gap. As a result, many judicial jurisprudences have been issued Which contributed to filling the gaps in legislation.
Accordingly, contemporary jurisprudence may focus on establishing the marital bond ، Such as diligence regarding the eligibility of a person who married with court permission when he was young ، As well as the financial implications of marriage، Such as reassessing child support or ownership of the furniture in the marital home ،Or it may be in the moral effects resulting from marriage, such as guardianship over children and obedience to the wife. Or it may be the effort to dissolve the marital bond. Such as divorce through electronic means or abandonment requiring judicial separation. Also, consider the financial consequences resulting from the dissolution of the marital bond Such as the requirement of the judiciary that the wife hate her husband when he requests divorce from him .
Finally, diligence may come about the non-financial effects that result from the dissolution of the marital bond Such as diligence in denying the lineage of a son that is legally established by modern scientific methods. As well as a violation of the implementation of the provisions regarding the supervision of a child in custody.