أحكام الصورية في الزواج وانحلاله - دراسة مقارنة

الباحث

مروة خليل ابراهيم العبيدي

المشرف

ندى سالم حمدون

الجامعة

جامعة الموصل

الكلية / القسم

كلية الحقوق / القانون الخاص

الشهادة

دكتوراه

السنة

2023

لغة الرسالة

عربي

الكلمات المفتاحية

الصورية; عقد الزواج; انحلال الزواج; القانون الخاص

Praise be to God, and prayers and peace be upon our master Muhammad and his family and companions, and after: The study deals with an important issue of the important issues in our current era, which is (fictitious marriage and divorce). In the recent period, fictitiousness occupied a prominent place in the work, whether on the civil level or in relation to marriage or divorce, as the contracting parties may resort to fictitiousness in order to hide what was contracted under a false guise or appearance and the aim of it is worldly motives only. In this study, we dealt with what is meant by fictitiousness in the marriage contract, explaining each of its absolute and relative types, and then explaining its forms. And since sham marriage is one of the types of newly created marriages, so we have discussed the meaning of sham marriage, the extent of its agreement, and its difference from other marriages, such as temporary marriage, analysis marriage, civil marriage, marriage with the intention of divorce, and joking marriage. with a sham marriage. And due to the need to clarify the reality of sham marriage in terms of its occurrence or not, especially after the many questions about it, so it was necessary to show its ruling in Islamic jurisprudence, the Iraqi personal status law and comparative laws in terms of indicating its occurrence and the evidence that can be relied upon to verify its rhythm, especially that the sham marriage is considered a utilitarian marriage Without achieving the goals set by Islamic law in achieving family stability and protecting offspring, as well as with regard to laws, as the occurrence of a sham marriage is considered a circumvention of regulations and laws to bring a benefit or preserve the right of privilege or ward off personal harm. b Also, sham is not achieved only in marriage, but it has expanded to the extent that it reaches divorce, and what comes down to sham divorce means dissolving the marriage contract outwardly while keeping it inwardly, as it is considered a formal divorce only, and the purpose, as in sham marriage, is only to achieve benefits that may not come except with its occurrence, so we have presented In our study, we aimed to clarify the meaning of mock divorce and highlight the most important motives that lead to its occurrence, as well as highlighting the points of similarity and difference between mock divorce from other words that may be similar to it, such as tricks, forgery, humor, and resorting, and we clarified the ruling of each of them jurisprudence and law. From a statement of its jurisprudence and law, and whether divorce takes place religiously or by jurisprudence only, by referring to the opinions of Sharia jurists and to what the laws went to, based on the most important contemporary fatwas of scholars, which guided us to reach the statement of the truth about the sham divorce and the statement of the ruling on its occurrence or not. In our study, we went to clarify the effects of both the sham marriage and the sham divorce, whether they were financial effects such as dowry, alimony and housing, or non-financial effects as in the waiting period. Finally, we touched on how to prove a sham marriage and divorce lawsuit in the event that it was filed by one of the spouses or by a third party, and we indicated the most important means of proof that can be relied upon to prove the sham. Whoever claims a sham marriage or divorce is the one who bears the burden of proving it, because the principle in the actions is that they are real. There is no fictitious in it. Therefore, the apparent contract is considered valid and results in all its legal effects between its two parties and those who inherit them, until it is proven that it is fictitious and unreal. Therefore, every claimant of fictitiousness can discover the truth by filing a fictitious claim, but the methods of proving fictitiousness differ according to whether This lawsuit is filed by one of the parties to the contract, or was filed by a third party. Through our study, we shed light on this phenomenon by identifying the mock lawsuit filed with the court and explaining its conditions, and highlighting the role of the judge in discovering the couple's intention to file a mock lawsuit on the one hand and how to adjudicate it on the other hand, and what are the ways to prove the moot in marriage and divorce. ) lawsuit is filed by one of the parties to the contract, or was filed by a third party. Through our study, we shed light on this phenomenon by identifying the mock lawsuit filed with the court and explaining its conditions, and highlighting the role of the judge in discovering the couple's intention to file a mock lawsuit on the one hand and how to adjudicate it on the other hand, and what are the ways to prove the moot in marriage and divorce. لج OS ### file 14.pdf PAGES=1 BODY ar=182 en=255

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