Marriage Laws and the Disabled
A Comparison between the United States, ADA, UN, and Iran
Marriage, What is it?
1: the state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law
History on how laws have changed…
Eugenics
- First eugenic law: Indiana, 1907
- Forced Sterilization was legal in 18 States, WITHOUT consent of the individual.
- “The U.S. practice of neutering “mentally defective” individuals was backed by most leading geneticists and often justified on grounds that it would relieve the public of the cost of caring for future generations of the mentally ill.”
- U.S. ended its practice with eugenic laws in the 60s.
Why get married?
- Love, Religion, Starting a Family
- Tax Benefits- i.e. a shared income, lower tax liability, credits for education, and dependents.
- HOWEVER, many people with disabilities lose much of their funding from their new legal status.
Marriage and the Constitution
- Marriage is not mentioned in the United States Constitution.
- Amendment 14 states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
State Marriage Laws
- “When the legal capacity and consent of both parties is present, establishes their relationship as husband and wife and which is recognized by the state as a civil contract”
What is Legal Capacity?
- What is reason?
- There is no universal legal test of mental capacity or incapacity.
- Normally a two part test.
- 1. Some type of disability must be verified.
- 2. There must be a finding that the disability prevents the person from performing activities essential to take care of his or her personal needs or property.
Can they or Can’t they?
- Depends on if the person is under guardianship
- If not, then the heterosexual couple can marry.
- If under guardianship, the court that determined the need for the guardian must be petitioned.
- Why?
Universal Declaration of Human Rights- Article 16
- Men and Women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution.
- Marriage shall be entered into only with the free and full consent of the intending individual.
Universal Declaration of Human Rights Continued….
- No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.
Marriage in Iran
- Marriage is a type of business contract for the selling of a woman’s body for the production of children
- Children are often a stipulated clause of these contracts, which can be long term or temporary arrangements.
- A dower system continues to be in effect.
- While Iran’s marriage law does not specifically address disability, their “dissolution” statues do….
History of Law in Iran
- Islamic Law, constitutional law, legislation, and informed sources such as customs.
- Applicable legislation on Marriage law comes from Iran’s Constitution, the 1989 Family Protection Act, and Iran’s Civil Code, which specifically addresses disability when discussing permissible grounds for the dissolution of a marriage.
The Hard Laws of Iran- the Constitution
- Article 10: Since the family is the most basic unit of Islamic society, all rules and regulations regarding family should serve the purpose of preservation of family and its relations based on Islamic rights and morals.
1989 Family Protection Law
- “leaving men’s absolute rights to divorce intact but stipulating that men are required by law to provide a sound argument to the court, which the court can reject if it does not comply with sharia. The result is to give women greater power over marriage contracts.”
- Women and men continue to have unequal divorce rights in Iran- men have absolute divorce rights so long as they “provide a sound argument to the court” whereas women’s divorce rights are limited to contract violations.
- “Men are the protectors and maintainers of women, because Allaah has made one of them to excel the other, and because they spend from their means” [al-Nisaa 4:34]
