Divorce in Iran, application routes and court procedures

Before applying, identify the appropriate route

In practice, a divorce application usually follows one of these routes

• An application by the husband
• An application by the wife based on a legal or contractual ground
• An agreement between both spouses to divorce
• The use of a power of attorney for divorce

This is a practical distinction between procedural routes. The legal distinction between revocable divorce, known as raj'i, and irrevocable divorce, known as ba'in, concerns the effects of divorce, including whether the husband can resume the marriage during the waiting period, or iddah.

1. Divorce at the husband's request

Under Article 1133 of the Iranian Civil Code, a husband may apply to the court for divorce subject to the legal requirements. Unlike a wife's application based on intolerable hardship, he does not need to prove hardship or misconduct by his wife as the basis of his request. Nevertheless, the application must follow the prescribed procedure. Filing it does not, by itself, authorise registration of the divorce.

In this route, the court issues a certificate of impossibility of reconciliation and addresses the wife's financial rights and matters concerning the children in its decision. The wife's objection alone does not prevent the application. Disputes about financial rights, marriage deed conditions and procedural requirements can, however, prolong the proceedings.

The wife's financial rights

Mahr, the marriage settlement

Any unpaid mahr must be assessed against the marriage deed, previous payments and valid agreements. If the wife has gifted, released or offered some or all of it in exchange for divorce, the legal effect of that particular act must be established. These arrangements are not interchangeable. Their wording and circumstances need to be examined.

Maintenance

Unpaid maintenance may be claimed where the wife was entitled to it and non-payment is established. The mere passage of time since marriage does not mean that unpaid maintenance is due for every part of that period. The spouses' living arrangements, payments made and each party's arguments matter.

In a revocable divorce, maintenance during the waiting period is also relevant, subject to Article 1109 of the Civil Code. A divorce requested by the husband is not necessarily revocable, and the waiting period is not always three months. Divorce before consummation and divorce of a postmenopausal wife are examples of irrevocable divorce. The usual waiting period for a non-pregnant woman who menstruates is three periods of purity between menstruations. For a pregnant woman, it continues until delivery.

Compensation for work during the marriage

The note to Article 336 of the Civil Code allows a wife to claim compensation, commonly called ojrat al-mesl, for work that was not religiously obligatory for her and ordinarily carries remuneration. The court must establish that the work was done at the husband's direction and without an intention to provide it gratuitously. This is therefore not a fixed, automatic payment for each year of marriage.

The type and duration of the work and the circumstances of the marriage are considered when determining the amount. An expert assessment may be required.

In my practical experience, some courts have declined to award this compensation in marriages lasting less than five years, particularly where there were no children. This observation should not be treated as a statutory five-year requirement. A short marriage does not, by itself, eliminate the right to claim. Establishing the legal conditions remains essential.

The condition on transferring up to half of the husband's assets

Many marriage deeds contain a condition concerning transfer of up to half of the husband's existing assets. Its application depends on whether the condition was signed and whether its particular requirements have been met.

Under the commonly used wording, the divorce must not have been requested by the wife. The court must also not consider the husband's request to have resulted from her breach of marital duties or misconduct. The condition concerns existing assets acquired by the husband during that marriage.

“Up to half” does not mean an automatic entitlement to half of everything he owns. Nor does this condition make all property acquired during marriage jointly owned. The deed, the assets and the parties' evidence require separate assessment.

If the husband cannot pay the financial obligations at once

Article 29 of the Family Protection Act generally links registration of divorce to payment of the wife's financial rights. Registration may also become possible with her consent to proceed without immediate payment, or following a final judgment establishing inability to pay or allowing instalments. Consent to registration without receiving payment does not, by itself, release the debt.

The husband may seek a judgment on inability to pay or an instalment arrangement, subject to the applicable requirements. The court examines his finances, assets, income and evidence. Approval, the initial payment and the instalment amounts are not guaranteed. There is no single figure applicable to every case. If the request is granted, the payment terms in the judgment must still be observed.

2. Divorce at the wife's request

A wife's application may rely on intolerable hardship, non-payment of maintenance subject to the statutory requirements, fulfilment of a condition in the marriage deed or another legal ground. Selecting the correct basis matters because each route has its own conditions and evidential requirements.

Intolerable hardship

Article 1130 of the Civil Code describes osr va haraj as circumstances in which continuing married life causes hardship that is difficult for the wife to endure. The statutory examples include

• The husband abandoning family life, without a valid excuse, for at least six consecutive months or nine non-consecutive months within one year
• Drug addiction or alcohol abuse that undermines family life, together with the other conditions specified by law
• A final conviction sentencing the husband to imprisonment for five years or more
• Persistent violence or mistreatment that is ordinarily intolerable in view of the wife's circumstances
• A serious psychiatric or contagious illness, or another serious medical condition, that disrupts married life

This list is not exhaustive. For example, a prison term of less than five years does not necessarily make hardship impossible to establish. It does not, however, meet the express example concerning imprisonment of five years or more on that fact alone.

The main difficulty is preparing the evidence

In many cases, the dispute concerns whether the conduct occurred, how long it continued and how it affected married life. General descriptions of marital conflict, without documents or particulars, may be insufficient to establish hardship.

To prove abandonment, identify the relevant period, living arrangements and facts capable of being established. A witness simply saying they did not see the husband will not always establish abandonment throughout the entire period. Evidence of his departure from the home, removal of belongings or establishment of a residence elsewhere, combined with other records and supporting circumstances, may assist the court's assessment.

In violence cases, forensic medical reports, complaint records, criminal judgments and other evidence matter. In my experience, some courts place particular emphasis on a final criminal judgment when deciding whether injuries are attributable to the husband. Such a judgment should not, however, be described as a statutory prerequisite in every hardship case.

Non-payment of maintenance

Article 1129 of the Civil Code provides a route to divorce where the husband refuses to pay maintenance and it is not possible to enforce the judgment and compel payment. The article also addresses his inability to pay maintenance.

Merely alleging that living expenses have not been paid is insufficient. Previous maintenance claims, the judgment and enforcement steps need to be reviewed. If the application relies on a condition in the marriage deed, its specific wording also matters.

What happens to the wife's financial rights?

Applying for divorce does not, by itself, extinguish a wife's mahr or other financial rights. Article 29 of the Family Protection Act and Article 16 of its implementing regulations provide for financial rights to be addressed in the court's decision.

In my practical experience, some courts have nevertheless restricted consideration of financial claims alongside the wife's divorce application, making separate proceedings necessary. Before applying, establish which financial claims have already been brought, whether judgments exist and which claims should be pursued in the current case or separately.

3. Divorce by mutual agreement

In a divorce by mutual agreement, the spouses agree both to separate and on the consequences. The Family Protection Act expressly provides for this route.

The agreement should specify what happens to mahr, maintenance, compensation for work during marriage, the wife's household goods and other claims. Where there are children, custody, contact and maintenance also require consideration. An agreement between parents does not remove the court's obligation to consider the child's interests.

A divorce by mutual agreement is not the same as khul' divorce. In khul', a wife who has an aversion to her husband gives property in return for divorce. Not every agreed divorce therefore requires the wife to give up her mahr or offer property. The type of divorce and the effects of the agreement must be clarified in the case.

Counselling and differences between courts

Article 25 of the Family Protection Act provides for referral of an agreed divorce application to a family counselling centre. Appointment procedures, sessions and the timetable should be checked against the arrangements in the locality handling the case. The centre reports its findings to the court. The court, rather than the centre, issues the certificate of impossibility of reconciliation.

A case sometimes begins as a unilateral application, with the spouses reaching an agreement during proceedings. In my experience, courts have differed in how they continue such cases and arrange counselling. This approach cannot be presented as a guaranteed way to avoid counselling. Advisory Opinion No. 7/94/988 also considers referral necessary where the application is converted to divorce by mutual agreement.

Before signing, distinguish between acknowledging receipt of money, waiving a claim and postponing payment. An unclear agreement can create a fresh dispute after the divorce.

4. Using a power of attorney for divorce

What is commonly called the wife's “right to divorce” often means authority granted to her by the husband to carry out a divorce on his behalf. The label alone does not establish her powers. The actual document must be reviewed.

The authority may be included in the marriage deed or granted in a separate instrument. Article 1119 of the Civil Code recognises a condition granting divorce agency within a marriage contract. Where the authority is conditional, exercising it may require proof in court that the condition has been fulfilled.

In my experience, relying solely on the wording of the marriage deed has encountered obstacles in some cases. The usability of that particular document and any need for additional powers should therefore be assessed before proceedings begin. These practical difficulties do not mean that every divorce agency clause in a marriage deed is legally invalid.

Which powers matter?

• Authority to delegate, allowing a practising lawyer to be appointed on the husband's behalf
• Authority to carry out court proceedings and register the divorce
• Authority to offer and accept property in exchange for divorce, where that route is chosen
• Powers needed to waive challenges to the decision, where necessary and legally permissible
• Whether the authority can be revoked and the other conditions governing its termination

Irrevocability and completeness are different issues. An irrevocable instrument may still omit a power required for a particular step. Conversely, a revocable power of attorney is not automatically invalid, although revocability can reduce the security of relying on it.

A practising lawyer must be appointed to represent the husband in court within the powers granted by the instrument. Holding a formal power of attorney from her husband does not, by itself, allow the wife to act as his lawyer in judicial proceedings.

From filing the application to registering the divorce

Initial documents

The marriage deed, identity documents and information needed for service of court documents are usually required. Depending on the chosen route, a power of attorney, agreement, previous judgments, financial records, forensic medical report or other evidence may also be needed.

Preparing the evidence means more than collecting every available document. Identify what each document establishes and which part of the application it supports.

Proceedings and challenges to the decision

The application is filed through the judicial electronic services system and referred to the competent court. Depending on the case, counselling, arbitration, expert assessment or other inquiries may take place. The court then issues its decision.

Whether a decision can be challenged, the applicable deadline and the competent reviewing court must be checked against the type of decision and its service. The general deadline for an ordinary appeal is twenty days for people residing in Iran and two months for those residing abroad. For decisions subject to cassation review, the law also distinguishes between these groups. It should not be assumed that every divorce decision is immune from review or reversal, or that a challenge can only concern the amount of financial obligations.

Registration at the divorce registry office

Once the requirements for implementation are met, the relevant certificate or judgment is submitted to an official divorce registry office with the required documents. The court must certify that the decision is final and enforceable.

A medical certificate concerning the presence or absence of a pregnancy is generally required, except where the law provides otherwise, including where both spouses agree that a pregnancy exists. Pregnancy should not be confused with an absolute prohibition on divorce.

The other spouse's absence does not always prevent registration. The rules differ, however, between a husband's application, a judgment compelling him to divorce and divorce by mutual agreement. For an agreed divorce, registration without the husband's attendance depends on the wife's valid authority and the statutory conditions.

If a representative will attend the registry office for either spouse, their authority to implement and register the divorce must be checked. Appointment of a lawyer for court proceedings alone does not establish authority to complete every registration step.

Do not miss the validity deadlines

Certificate of impossibility of reconciliation

Under Article 34 of the Family Protection Act, the certificate must be submitted to the registry office within three months of service of the final decision or the decision becoming final. If, after submission, the submitting party does not attend or provide the necessary documents within three months, the certificate loses validity. This rule should therefore not be reduced to “three months to complete the entire divorce registration process”.

Divorce judgment

Under Article 33, a divorce judgment is valid for six months from service of the cassation decision or expiry of the deadline for seeking cassation review. The precise type of court decision matters. The deadline should not be calculated solely by identifying which spouse began the proceedings.

Inability to pay and preservation of the certificate

Article 20 of the implementing regulations provides for preservation of the certificate pending determination of inability to pay where the husband has submitted it to the registry office within the prescribed period, declared his inability to pay and also delivered proof of filing the relevant inability-to-pay or instalment application within that period. Merely filing that application, without taking the required steps at the registry office, is insufficient.

Frequently asked questions

How long do proceedings take?

There is no fixed duration. In my experience, some husband's applications have taken around one to two years, while some wife's applications have taken around one to three years. These figures are neither statutory minimums nor promises. Challenges to the decision, difficulties serving documents, financial disputes and further inquiries can change the timetable.

Cases based on agreement or a sufficiently comprehensive power of attorney are generally shorter where the documents are ready and no new dispute arises. Around three months may be an initial estimate for some cases, but a firm timetable cannot be given before reviewing the circumstances.

Does appointing a lawyer remove the need to attend personally?

A lawyer can handle many procedural steps. Personal attendance for counselling, inquiries, a medical examination or registration must nevertheless be assessed separately. A promise that nobody will need to attend at any stage in every case would be inaccurate.

Must the wife give up her mahr to obtain a divorce?

No. Waiving mahr is not a general requirement for every route. Khul' divorce involves giving property in exchange for divorce, while the terms of an agreed divorce depend on the agreement. A wife's application does not, by itself, extinguish her mahr.

Can a case be pursued if we live outside Iran?

The spouses' places of residence, marriage documents, ability to grant a valid power of attorney and any need for personal attendance must be reviewed. It is also necessary to distinguish between obtaining a divorce in Iran and seeking recognition or registration of the effects of a divorce obtained elsewhere. These are different routes.

What should be clarified before taking action?

A divorce case involves more than choosing a title for the application. Its legal basis, supporting evidence, financial rights, arrangements for children and authority to complete registration should be considered from the outset. Distinguishing statutory rules from practical court experience also helps identify a realistic route.

To begin a review, briefly explain the type of application, where both spouses live, whether there are children and which documents or divorce powers of attorney are available. Please agree on a suitable method before sending personal documents.

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Legal sources

• Iranian Civil Code, particularly Articles 336, 679, 1109, 1119, 1129, 1130, 1133 and 1143–1155
• Family Protection Act of 1391 in the Iranian calendar, particularly Articles 25–36 and 39
• Implementing regulations of the Family Protection Act, particularly Articles 16, 20 and the divorce registration provisions
• Iranian Code of Civil Procedure, Articles 336, 397 and 398
• Advisory Opinion No. 7/94/988 on an agreement reached during proceedings and referral to counselling

The Persian texts of the legislation and advisory opinion are available for reference

• Iranian Civil Code
• Family Protection Act
• Implementing regulations of the Family Protection Act
• Code of Civil Procedure
• Advisory Opinion No. 7/94/988

This article provides general information and the author's practical observations. Assessment of an individual case requires review of its documents and circumstances.