دور مبادئ الشريعة الاسلامية في انحلال عقد الزواج (دراسة مقارنة بالشريعة الاسلامية)

The Role of Islamic Sharia principles in rulings on the dissolution of the marriage contract ( A Comparative Study in Islamic Jurisprudence)

Abstract

Personal status is considered one of the most important topics that concern a person in every era and time because its provisions contribute to his most intimate characteristics, and are connected to all aspects of his life from before his birth until after his death, and because it regulates the affairs of the family in which he grows up, which represents the building block upon which society is built, as it is strengthened by its cohesion and weakened by the separation of its bonds, so it meant Islamic Sharia has also strengthened the relationship between its members by establishing it on affection and mercy. Therefore, the Personal Status Law is considered one of the most important laws, if not the most important at all, because of the rights and duties it imposes on all family members, and since the provisions of Islamic Sharia came to all human beings from the Most Kind and All-Knowing, therefore Topics are always raised whose focus is the position of the provisions of Islamic Sharia in the state’s legal systems. Among these topics are the provisions on the dissolution of the marriage contract in Iraqi law.
The Iraqi legislator, like most legislators in Islamic countries, especially Arab countries, was keen to regulate the relationship between religion and the state, since the provisions for the dissolution of the marriage contract are derived from Islamic law. The Iraqi Constitution has indicated that it is not permissible to enact a law that conflicts with the principles of Islamic law, but when the Iraqi legislator organized the provisions for the dissolution of the marriage contract in the Personal Status Law, he departed from this provision and stipulated cases in which it violated the provisions of Islamic Sharia, and also created cases of judicial separation. Islamic law does not specify that the judiciary is the one responsible for divorce at the request of one of the spouses, so all of this raises many problems.
This research addressed the issues of divorce between the principles of Islamic Sharia and the provisions of the law by identifying the meaning of divorce, its ruling, its legitimacy, and the wisdom of it, as well as divorce by the will of the wife and by the will of the husband between the principles of Islamic Sharia and the law. The meaning of divorce by agreement, its ruling, and the wisdom of it were also addressed. The role of the principles of Islamic Sharia in its components. It also touched on the nature of judicial separation and the extent of the authority of will in it, and the role of the principles of Islamic Sharia in cases of separation due to the harm caused to both spouses, and in the right to request separation by the wife in several cases.
And to identify cases of the law violating Sharia through proposals through which the law can be more appropriate to the principles of Islamic Sharia. We will also show through research the areas of agreement and difference between Islamic Sharia and the position of the Iraqi legislator and state the preponderant opinion.
The topic of the role of the principles of Islamic Sharia in the dissolution of the marriage contract is of great importance from a practical standpoint that requires research into it. Perhaps the motivation for this study is the scarcity of studies related to it, as we did not find independent research that addresses the role of the principles of Islamic Sharia in the dissolution of the marriage contract separately, but there is research that deals with the details From this research, it is explained what is the role of the principles of Islamic law in formulating the provisions for the dissolution of the marriage contract, as well as the extent of the Iraqi legislator’s commitment to them, and what are the shortcomings and loopholes in the provisions of the Iraqi Personal Status Law No. (188) of 1959 that require review and amendment in a manner consistent with Principles of Islamic Sharia.