Marriage Laws and Marriage Laws and the Disabledthe Disabled

A Comparison between the A Comparison between the United States, ADA, UN, and United States, ADA, UN, and

IranIran

Marriage, What is it?Marriage, What is it?

1:1: the state of being the state of being united to a person united to a person of the opposite sex of the opposite sex as husband or wife as husband or wife in a legal, in a legal, consensual, and consensual, and contractual contractual relationship relationship recognized and recognized and sanctioned by and sanctioned by and dissolvable only by dissolvable only by law law

History on how laws have History on how laws have changed…changed…

EugenicsEugenics First eugenic law: Indiana, 1907First eugenic law: Indiana, 1907 Forced Sterilization was legal in 18 Forced Sterilization was legal in 18

States, WITHOUT consent of the States, WITHOUT consent of the individual.individual.

““The U.S. practice of neutering The U.S. practice of neutering ``mentally defective'' individuals was ``mentally defective'' individuals was backed by most leading geneticists and backed by most leading geneticists and often justified on grounds that it would often justified on grounds that it would relieve the public of the cost of caring for relieve the public of the cost of caring for future generations of the mentally ill.”future generations of the mentally ill.”

U.S. ended its practice with eugenic laws U.S. ended its practice with eugenic laws in the 60s. in the 60s.

Why get married? Why get married?

Love, Religion, Starting a FamilyLove, Religion, Starting a Family Tax Benefits- i.e. a shared income, Tax Benefits- i.e. a shared income,

lower tax liability, credits for lower tax liability, credits for education, and dependents. education, and dependents.

HOWEVER, many people with HOWEVER, many people with disabilities lose much of their funding disabilities lose much of their funding from their new legal status. from their new legal status.

Marriage and the Marriage and the Constitution Constitution

Marriage is not mentioned in the United States Marriage is not mentioned in the United States Constitution. Constitution.

Amendment 14 states that “No state shall make or Amendment 14 states that “No state shall make or enforce any law which shall abridge the privileges enforce any law which shall abridge the privileges or immunities of citizens of the United States”or immunities of citizens of the United States”

State Marriage LawsState Marriage Laws ““When the legal When the legal

capacity and capacity and consent of both consent of both parties is present, parties is present, establishes their establishes their relationship as relationship as husband and wife husband and wife and which is and which is recognized by the recognized by the state as a civil state as a civil contract” contract”

What is Legal Capacity?What is Legal Capacity?

What is reason? What is reason? There is no universal legal test of mental There is no universal legal test of mental

capacity or incapacity. capacity or incapacity. Normally a two part test. Normally a two part test. 1. Some type of disability must be verified.1. Some type of disability must be verified. 2. There must be a finding that the 2. There must be a finding that the

disability prevents the person from disability prevents the person from performing activities essential to take care performing activities essential to take care of his or her personal needs or property. of his or her personal needs or property.

Can they or Can’t they? Can they or Can’t they?

Depends on if the person is under Depends on if the person is under guardianshipguardianship

If not, then the heterosexual couple If not, then the heterosexual couple can marry. can marry.

If under guardianship, the court that If under guardianship, the court that determined the need for the determined the need for the guardian must be petitioned. guardian must be petitioned.

Why?Why?

Universal Declaration of Universal Declaration of Human Rights- Article 16Human Rights- Article 16

Men and Women of full age, without Men and Women of full age, without any limitation due to race, nationality any limitation due to race, nationality or religion, have the right to marry or religion, have the right to marry and to found a family. They are and to found a family. They are entitled to equal rights as to entitled to equal rights as to marriage, during marriage and its marriage, during marriage and its dissolution.dissolution.

Marriage shall be entered into only Marriage shall be entered into only with the free and full consent of the with the free and full consent of the intending individual. intending individual.

Universal Declaration of Universal Declaration of Human Rights Continued….Human Rights Continued….

No marriage shall be legally entered No marriage shall be legally entered into without the full and free consent into without the full and free consent of both parties, such consent to be of both parties, such consent to be expressed in person after due expressed in person after due publicity and in the presence of the publicity and in the presence of the authority competent to solemnize the authority competent to solemnize the marriage and of witnesses, as marriage and of witnesses, as prescribed by law.prescribed by law.

Marriage in IranMarriage in Iran

Marriage is a type of business contract Marriage is a type of business contract for the selling of a woman’s body for for the selling of a woman’s body for the production of children the production of children

Children are often a stipulated clause Children are often a stipulated clause of these contracts, which can be long of these contracts, which can be long term or temporary arrangements.term or temporary arrangements.

A dower system continues to be in A dower system continues to be in effect. effect.

While Iran’s marriage law does not While Iran’s marriage law does not specifically address disability, their specifically address disability, their “dissolution” statues do.... “dissolution” statues do....

History of Law in IranHistory of Law in Iran

Islamic Law, constitutional law, Islamic Law, constitutional law, legislation, and informed sources such as legislation, and informed sources such as customs. customs.

Applicable legislation on Marriage law Applicable legislation on Marriage law comes from Iran’s Constitution, the 1989 comes from Iran’s Constitution, the 1989 Family Protection Act, and Iran’s Civil Family Protection Act, and Iran’s Civil Code, which specifically addresses Code, which specifically addresses disability when discussing permissible disability when discussing permissible grounds for the dissolution of a grounds for the dissolution of a marriage.marriage.

The Hard Laws of Iran- the The Hard Laws of Iran- the ConstitutionConstitution

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

1989 Family Protection Law1989 Family Protection Law

““leaving men’s absolute rights to leaving men’s absolute rights to divorce intact but stipulating that divorce intact but stipulating that men are required by law to provide a men are required by law to provide a sound argument to the court, which sound argument to the court, which the court can reject if it does not the court can reject if it does not comply with sharia. The result is to comply with sharia. The result is to give women greater power over give women greater power over marriage contracts.”marriage contracts.”

Women and men continue to have Women and men continue to have unequal divorce rights in Iran- men unequal divorce rights in Iran- men have absolute divorce rights so long have absolute divorce rights so long as they “provide a sound argument as they “provide a sound argument to the court” whereas women’s to the court” whereas women’s divorce rights are limited to contract divorce rights are limited to contract violations.violations.

““Men are the Men are the protectors and protectors and maintainers of maintainers of women, because women, because Allaah has made Allaah has made one of them to one of them to excel the other, excel the other, and because and because they spend from they spend from their means” [al-their means” [al-Nisaa 4:34]Nisaa 4:34]

What Iran’s “Dissolution Laws” What Iran’s “Dissolution Laws” mean for people with mean for people with

disabilitiesdisabilities Civil Code: “any physical defect, in Civil Code: “any physical defect, in

husband or wife, is legal grounds for husband or wife, is legal grounds for claiming dissolution…”claiming dissolution…”

““proven insanity of either spouse; proven insanity of either spouse; the husband’s castration or inability the husband’s castration or inability to consummate marriage; defect of to consummate marriage; defect of the wife interfering with conjugal the wife interfering with conjugal relations or her total blindness, relations or her total blindness, contracting leprosy or becoming contracting leprosy or becoming seriously crippled if they existed at seriously crippled if they existed at time of contracttime of contract…” …”

Dissolution continued…Dissolution continued…

This law makes it clear that mental This law makes it clear that mental and physical disabilities are grounds and physical disabilities are grounds for claiming the dissolution of a for claiming the dissolution of a marriage in Iranmarriage in Iran

The Civil Code and Disability- The Civil Code and Disability- implied soft lawimplied soft law

A physically disabled man from a A physically disabled man from a wealthy family, so long as he can wealthy family, so long as he can consummate the marriage, can consummate the marriage, can purchase a wife and procreate legally.purchase a wife and procreate legally.

A man can buy immunity from this A man can buy immunity from this stipulation. stipulation.

The social role assigned to women The social role assigned to women within Islam would make a similar within Islam would make a similar arrangement for a disabled woman arrangement for a disabled woman unlikely. unlikely.

Defining DisabilityDefining Disability

Inability to fulfill Inability to fulfill social role social role (providing for (providing for family, spouse)family, spouse)

Social class (status, Social class (status, money)money)

GenderGender

Case ExamplesCase Examples

The Epileptic Wife The Epileptic Wife

The boy with Cerebral PalsyThe boy with Cerebral Palsy

Iran’s Marriage Law vs. Iran’s Marriage Law vs. Marriage Law in the United Marriage Law in the United

StatesStates

Rights/Responsibilities of Men and Rights/Responsibilities of Men and WomenWomen

Dissolution based on disability Dissolution based on disability Protection against DiscriminationProtection against Discrimination Abortion Abortion

Iran and the UN Declaration of Iran and the UN Declaration of Human Rights- Article 16Human Rights- Article 16

ALL Men and Women vs. the ALL Men and Women vs. the inequality of Men and Womeninequality of Men and Women

Equal Access to the Contract vs. Equal Access to the Contract vs. StatusStatus

Negative Paradigm of people with Negative Paradigm of people with disabilities and marriagedisabilities and marriage

ConsentConsent

US and the UN Declaration of US and the UN Declaration of Human RightsHuman Rights

The current hard law holds trueThe current hard law holds true Men and Women receive equal rights Men and Women receive equal rights

under the contract of marriageunder the contract of marriage Both parties must have full consent Both parties must have full consent

upon entering the agreementupon entering the agreement

ConclusionConclusion

Hard law does not necessarily Hard law does not necessarily indicate social policyindicate social policy

Between a man and a womanBetween a man and a woman Full legal capacityFull legal capacity Civil ContractCivil Contract Family and children are procured Family and children are procured