چکیده:
The parties to a marriage contract may, at their own discretion, decide to include various conditions within the contract. One such condition is for the wife to stipulate that the husband shall not take another spouse in her presence, or additionally, to stipulate that in the event of a violation, a certain type of disqualification from certain matters shall be imposed upon him. At the same time, there are narrations that consider this condition illegitimate. This has caused the majority of jurists to hold that such a condition is void, while conversely, some consider it permissible and binding. After examining the dimensions of the issue, it becomes clear that according to the general rule of the permissibility of stipulating a permissible matter, there is no conflict between the obligation of the condition of non-remarriage and the evidence for the permissibility of remarriage (An-Nisa, 3); furthermore, the condition of non-remarriage means a commitment to refrain from a permissible act and never means the prohibition of something lawful. Additionally, its stipulation and binding nature can be considered under secondary titles. The documented narrations of the majority refer to specific conditions, whereas the second group of narrations explicitly state the permissibility of the stipulation. Consequently, this condition within a marriage contract is legitimate and legal.
خلاصه ماشینی:
Evaluation of the reasons for the theory of the invalidity of the condition 1- Regarding the narrations relied upon by this group, it can be said that in the two mentioned narrations, the invalidity of the condition is due to the fact that the divorce of the first wife has been stipulated as a conditional result (she is divorced) and divorce is one of the legal acts that requires conditions and legal causes and is not realized merely by stipulating it; for this reason, in both narrations, His Eminence stated that this condition is void and invalid and contrary to the Book and the Sunnah, meaning that divorce in the form of a conditional result has no validity and no legal effect according to the legislator; therefore, its condition is also void.
Answer: If this condition was meant as a waiver of a right, it is not valid or enforceable at all, and if it was in a correct manner, the condition within the marriage contract is not an option for rescission (Khiyar), although it is binding" (Istifta'at al-Zawaj wa al-Usra, available at the website: http://portal.
However, if the predicted enforcement mechanism conflicts with or is contrary to the law or the second marriage—such as stipulating that if the husband remarries, the wife shall have the right to rescind the second marriage or the first marriage, or that one of these two marriages becomes rescinded or one of the women becomes divorced—in this case, according to Iranian law, the principle of the non-marriage condition is void; because the enforcement mechanism specified between the parties is an illegal and illegitimate matter; consequently, the contract is void due to the illegitimacy of its subject and by citing Article 348 of the Civil Code.
(
, 
, 
)
