What Is the Right to Divorce, and Who Holds It?

As you know, under Article 1133 of the Civil Code and under Sharia law, the right to divorce belongs to the husband. However, the husband may grant power of attorney to exercise this right to his wife or to any other person. Importantly, even if the husband has given his wife an irrevocable power of attorney for divorce, the husband's own right to divorce still remains, and he may also pursue the divorce himself.

The power of attorney for the right to divorce can take one of two forms: first, it can be written as a condition within the marriage contract itself; second, the husband can go to a notary public's office and grant power of attorney for divorce to his wife or to someone else. If the husband is abroad, he may go to an Iranian embassy or consulate and grant the right to divorce to whomever he wishes. The most common case is that the husband grants this power of attorney to his wife, but as noted, the husband may assign this power of attorney to anyone he chooses — his father, a friend, or his wife.

If the right to divorce was included as a condition within the marriage contract, the marriage certificate itself is sufficient for this purpose. If the divorce is carried out at a notary office, the original and a copy of the birth certificate, the original and a copy of the national ID card, and the original marriage certificate are required.

It should be noted that, to establish her power of attorney before a court, the wife needs a formal power-of-attorney document from the husband. In practice, the wife cannot identify herself as the husband's attorney solely by relying on the condition written into the marriage contract; for that condition to be enforceable, the husband must, in addition to including such a condition, also go to a notary public's office to grant the power of attorney to the wife, and through a formal document setting out the matters above and providing the necessary documentation, grant her the power of attorney to divorce herself on his behalf. We now look at the conditions for such a power-of-attorney document.

The power of attorney the husband grants to the wife must be irrevocable. A power-of-attorney contract is, by its nature, a "permissible" contract (meaning either party may rescind it at any time); as a result, it is preferable that the power-of-attorney contract be granted to the wife as part of the marriage contract — which is a "binding" contract — or that the power-of-attorney contract include, at its outset, the phrase "as a condition within a binding external contract," so that the power of attorney granted to the wife cannot easily be revoked. In the power-of-attorney contract, the principal (the husband) must grant the agent (the wife) full authority over divorcing the wife and observing all the legal formalities required, so that the wife, acting on her husband's behalf, can free herself from the marital bond without the husband being able to obstruct the process. This includes matters such as: visiting electronic registration offices, going to court or to the Dispute Resolution Council, going to arbitration or selecting an arbitrator, going to a notary public's office and registering the divorce, performing the religious divorce formula, obtaining the divorce certificate, granting power of attorney to a third party, the right to receive or waive the mahriyeh on the husband's behalf, and attending the mandatory counseling sessions. To make the power of attorney easier to execute, it is best to add the phrase "in such a way that the principal's renewed presence is not required" at the end of the list of the agent's powers.

In such a case, the wife, as the husband's attorney, files for an uncontested (mutually agreed) divorce, and the same formalities apply: if a request for an uncontested divorce is filed by the wife as the husband's attorney, both parties are first referred to counseling, and the request is then referred to the court for adjudication. In this case, the wife, by virtue of the power of attorney she holds from her husband, submits the divorce request to the court on her husband's behalf, and if the power-of-attorney document has been properly drafted, she can also carry out the remaining legal steps of the divorce petition on her husband's behalf. In some cases, the husband personally withdraws the divorce petition that his wife filed as his attorney, in order to obstruct the continuation of the divorce process by the wife. As we know, a complete waiver of rights — even by the person themselves — is not valid; therefore, a condition that strips away the right to withdraw a lawsuit (meaning to abandon it) is not acceptable under Iranian law. As a result, the power-of-attorney document concerning the divorce must grant the agent (the wife) the authority to decide, at her own discretion, on withdrawing the lawsuit, and on any appeal or further appeal of that lawsuit, should she file it under this power of attorney; and if the agent (the wife) so decides, she must be able to formally and definitively waive such rights regarding the filed lawsuit, on the principal's behalf. As shown here, because this is not a complete waiver of rights but a partial one limited to a specific lawsuit, such a condition can be considered valid under Iranian law.

The twelve conditions of the marriage contract

The conditions included in the marriage contract comprise twelve clauses, known as the "twelve conditions" of the marriage contract. The conditions granting the wife the right to divorce are:

1. The wife may request a divorce from the court if the husband refuses to provide for her living expenses and fulfill her other mandatory rights for a period of six months.

2. The second condition entitling the wife to a divorce is the husband's mistreatment, to such a degree that continuing the marriage becomes intolerable for the wife.