家族法 イスラーム法
1. 婚姻（ニカーフ）
Family law
1. Marriage (Nikafu)
・ Original meaning "sexual intercourse". Prior to Islam, various forms ➡ Only the form in which a man pays a bride's guardian a bride was modified and inherited.
・ Legal / religious significance: (1) Men and women can be legally combined without adultery. ② For the survival of women and children. ③ Development of Islamic community by increasing Muslims ➡ “The closest to Shinto ritual in personnel affairs”. Marriage recommendation by the Prophet. Deny excessive religious abstinence.
-Legal definition: A paid bilateral contract in which the husband owns the wife's sexual use profit (Manfaa) in exchange for the bride price (Mahr, Sidark). Cf. Husband's wife support obligation ⇔ Wife's obedience obligation.
・ Consent contract-However, marriage guardianship system, witness witnessing, bride price.
1.2 Marriage establishment / validity requirements
1) Contracting parties
・ There is no fixed age for marriage. If a man is an adult, he / she can conclude a contract by himself / herself.
Marriage guardianship: A remnant of pre-Islamic practice. Marriage guardian = Asaba (male-male relative). Ward = minors (men and women) and adult women (other than Hanafi).
Whether or not there is a compulsory marriage right: Basically, father or grandfather 〇. Always 〇 for minor men and women.
2) Application and acceptance-Stricter than buying and selling.
3) Deadlines / conditions, prohibition / restriction of contracts
・ Prohibition of mutoa (temporary marriage): mutʿa = "pleasure". Prior to Islam, it was held between soldiers and merchants and their local wives. 12 Effective for Imamiyyah.
・ Conflict over contracts in favor of wife-Effective theory for Maliki and Hanbali groups.
・ Prohibition of shighār marriage.
4) Witness witnesses-In the majority theory, it is a practical requirement. (1) To prevent adultery, (2) To publicize the legality of marriage ➡ Recommendation of wedding receptions and music.
・ Issues regarding requirements (same as witnesses in court) -status, virtue (Adara), 2 men / 1 man + 2 women), religion.
5) No marital disability-The range of "forbidden women" (marriage).
(1) Permanent disability-Disability due to blood relations, dairy relatives, and relatives.
Q4: 23 "You are forbidden to have your mother, daughter, sister, paternal oba, maternal oba, brother's daughter, sister's daughter, nipple, dairy sister, wife's mother, you. The daughter of a woman who went to bed and the adopted daughter you are taking over, but if you have not completed going to bed with that woman, you are not guilty, and the spouse of your son who came out of your waist A person. You cannot have two sisters as spouses at the same time. "
・ Blood relations ～ ① All lineal relatives, ② All ancestral brothers and sisters, ③ Brothers and sisters and all their descendants ×.
Cousin marriage is not popular.
・ Same as milk kinship-blood relationship. Nanny = mother, nanny husband = father ("father's milk" principle).
・ Marriage relationship- (for men) All male ancestors (Q4: 22), all female ancestors of wives, all female servants of wives raised by oneself.
・ Other permanent obstacles-Between men and women whose marriage has been resolved by the "judgment of the curse".
(2) Temporary disability: Up to 4 people.
Q4: 3 "If you think that you can't justify an orphan (by yourself), you should pick up a woman you like, two, three, four. But if ( If you can't be fair (with many wives), leave it alone, or put up with what your right hand owns, because you're less likely to lose one. I'm sorry. "
③ Simultaneous marriage with sisters (Q4: 23).
④ Religion: Muslim men can marry women of the People of the Book (Q5: 5).
⑤ Marriage of a free person and his own slave-conditionally ○ for slaves of others.
Cf. Q4: 25 "Among you, those who cannot marry a free-spirited woman who is religious in terms of property, marry from among the female slaves who have faith in her right hand .... This is especially true. It is designed for those who are worried about rape. "
⑥ Ihram (holy farewell) state.
⑦ Marriage with a woman during the waiting period.
⑧ Disability due to the third divorce declaration.
6) Appropriateness (kafāʾa): According to the majority theory, the requirement that a marriage contract be binding.
・ For women, marriage with a man of higher status / equality (conflict of theory such as status, pedigree, financial strength, religious belief, religious belief, occupation, health condition, etc.).
1.3 Marriage effect
1.3.1 Bride price (Mahr, Sidark) -Wife gets a claim by "going to bed" (contract price / equivalent bride price). According to non-Maliki factions, it is not a valid requirement for marriage.
(1) Contracted bride price-set by the contracting party. Without limit. There is a conflict as to whether or not there is a lower limit.
However, there are many postpaid contracts (to prevent divorce by the husband).
(2) Equivalent bride price-cardy is set. Bride price normally paid to the female Asaba / woman of the same land, who is equivalent in terms of age, appearance, resources, (pedigree, virginity / non-virginity, reason, loyalty, etc.).
Divorce before going to bed and obligation of Mutoa (compensation):
Q2: 236 "You are not guilty of divorcing her if you haven't touched her wife and haven't specified her bride price. ".
Q2: 237 "If I haven't touched my wife yet, but if I divorce after I have specified only her bride price, she will be half the amount I specified."
1.3.2 Dependent claim
・ Basically food and clothing and related items. Based on the husband and wife's financial resources. Treatment fee / medicine fee ×.
The wife's "duty of obedience" after the bed is completed (making it possible for her wife to hand over herself to her husband for her pleasure or to move her to any place she likes. ) And correspondence.
➡ Claimed for “disobedience” (Nushoes) that should be attributed to my wife.
➡ × even if the wife is a child. Various theories in the case of illness.
・ Problem of non-fulfillment of dependent obligations by husband-large difference between schools.
➡ Breastfeeding and raising children is not a wife's duty.
1.3.3 Other rights of wives-Claims for residences that meet an appropriate living environment, and night claims (according to the theory).
Husbands are obliged to hire servants and cooks, depending on the origin of their wives.
1.3.4 Husband's right-marital relationship, prohibition of going out, right to ask for travel, (restriction of visits with close relatives), disciplinary right.
Q4: 34 "God originally put a superiority and inferiority between a man and a (woman), and a man pays (necessary for life) money, so in this respect a man is a woman. What you should stand on .... A woman who is worried about becoming rebellious can often remind her (if that doesn't work) and drive her to bed (if that doesn't work), but she can beat her. If you can hear it, don't try to do anything more. "
1.3.5 Inheritance
2. Elimination of marriage
1. Divorce: Declaration of divorce, divorce by contract, Eller divorce, back divorce.
Can be canceled during wife's waiting period: Divorce declaration, (many theory) Ehler divorce.
Those that cannot be canceled but can be reunited immediately after the end of the waiting period: Divorce declaration, divorce by contract.
Temporary Marriage Disorders: Third Declaration of Divorce.
2. Death of one spouse.
3. Others-Cancellation (equality, right of choice), of course elimination (apostasy, etc.), curse referee (divorce depending on the theory ➡ parent-child relationship will be described later).
・ Common effect-wife's obligation to marry. Exception) Marriage cancellation before entering the floor
2.1 Declaration of divorce (Talark)
・ The original meaning is "to unleash (camel)". Husband's unique rights (but restrictions) from before Islam.
・ Effective requirements-The husband must be an adult, have reason, and be a (Maliki) Muslim.
Depending on the theory, minors (10 years old and over), drunk people, and obsessive-compulsive people may be ○.
However, the distinction between explicit and suggestive language-whether or not there is an intention to divorce.
・ Cancelable / non-cancellable divorce:
Q2: 229 First half "You can only divorce (and reconnect) a woman up to two times. You can do it freely. Don't pick up what you've given before. "
Q2: 230 "So, if you officially divorced her (third time), you wouldn't be allowed to reconnect until she married another man. But that (man) woman If they are divorced, they can go back (or remarriage) as long as they are confident that they are following God's commandments. "
➡ Up to the second time, you can cancel / remarriage during the waiting period.
➡ After the third declaration of divorce, a temporary marriage disorder between the ex-husband and wife (effective remarriage of wife after the end of the waiting period + going to bed ➡ death / divorce of husband 2 ➡ until the expiration of the waiting period). Restrictions on pre-Islamic practices.
Cf. Lifting of the ban (Tafreel)
2.2 Divorce by contract (Furu)
Consensus divorce based on payment of consideration by wife / third party / waiver of bride price claim (Hanafi faction: a type of divorce declaration).
Q2: 229 Second half "However, unless you are worried that both of you are unlikely to keep the rules set by God. If such worries occur, it seems that both of you will be able to keep the rules of God at all. If there is no such thing, even if a woman redeems herself, it is not the fault of both of them. "
When "both names are unlikely to keep the rules set by God" -when the wife does not fulfill her obligations.
・ When the husband does not fulfill his obligations-other than the Hanafi group ×.
・ If there is no default-other than Hanbali ○.
2.3 Eller Divorce Q2: 226 "Those who swear to break sexual intercourse with their wives need to wait four months, where if they reconnect, God will be tolerant and merciful." Q2: 227 "If you decide to divorce, God really listens and knows you."
2.4 Back divorce (Zihar) Q58: 1-4 "God disagrees with you about her husband and listens to the words of the women who are appealing to God ... Some of you ， Some people liken their wives to their mother ’s back ・ ・ If (they) withdraw their preamble, they must release their slaves before having sexual intercourse ... ， Before having sexual intercourse, he must be admonished for two months in a row. Those who cannot do so must feed 60 poor people. ”
2.5 Marriage cancellation based on option (trial divorce) -Allowed by one spouse (especially wife) based on statutory reasons.
・ Release option-If the wife of the slave couple is released, the same is true.
・ Adult / healing option (minor theory) -Minor / demented person who has been forced to marry.
・ Physical and mental defects of husband
Hanafi theory-Only when sexual dysfunction or genital deficiency causes sexual dysfunction.
Many theories ~ + Loss of mind, leprosy, vitiligo (etc.).
・ Failure of husband's obligation to marry and support-Hanafi group only × (Refusal of obligation to submit ○).
・ There is a dispute over the necessity of the disappearance of the husband and the estimation of death.
3. Waiting period
・ Women's remarriage taboo period after marriage is resolved: (1) To prevent confusion in the estimation of paternity. (2) To commemorate her husband (a widow and a woman who was divorced for the third time according to many theories).
type)
・ Waiting period for divorce: 3 times “hyperemia (qurʾ)” (Q2: 228) ➡ Menopausal women / minor women: 3 months (Q65: 4).
・ Marriage taboo period for death: 4 months and 10 days (Q2: 234).
・ Pregnant women's waiting period: Until childbirth (Q65: 4).
4. Parent-child relationship
・ Nasab = father-son relationship, paternity. Cf. Arab name.
Causes: (1) marriage, (2) "ownership of the right hand", (3) otherwise unsuccessful adultery, (4) approval (Iklar), (5) protection (Hanafi only).
Child = real child (no adoption system). Q33: 4 "Adopted children do not become true sons", 33:40 "Muhammad is not the father of any of you. Originally, he was an apostle of God and a prophet's detention."
Status (freedom / slave status) -Follow the father or mother (mother free person = child free person).
Religion: Parents are Muslim ➡ Muslim. Choice when mother is non-Muslim ➡ child adult.
Paternity estimation
・ As a general rule, if it is judged that a child born of a free female / female slave is pregnant during the continuation of marriage / "ownership of the right hand" in view of the time of birth ➡ Avoiding adultery, non-conviction Avoiding the social disadvantages of illegitimate children.
A. Free female child
1) Child born during the marriage: In principle, ○ if it is 6 months or later after the marriage is established.
Basis) Q46: 15 (30 months from gestation to weaning), Q2: 233 (lactation period = 2 years).
➡ Husband can only deny a child by a curse referee.
Judgment of the Curse (liʿān): Husband's curse and wife's anti-curse (Q24: 6-9) who are convinced of adultery but cannot prove it.
Procedure: The husband testifies that his claim is true four times, and if it is a lie the fifth time, he swears to himself that it is a curse of God. The wife testifies four times that her husband's claim is a lie, and she swears to herself that she is a curse of God if she is true the fifth time.
(Detective) Adultery for wife and adultery for husband are not established. (Civil) (1) Elimination of marriage, (2) Permanent marriage disorder, (3) Denial of paternity of wife's child.
2) Child born after marriage is resolved: In principle, ○ if it is during the waiting period. In other cases, for 2-7 years (according to the theory) after the marriage is resolved, ○ ➡ To avoid adultery and the disadvantage of the child.
B. Child of a female slave
-Female slave who gave birth to the owner's child = Umm al Quawain ("mother of the child").
-Owner's recognizable requirements: 6 months or more after the first sexual intercourse.
• If the owner denies it, the child will still have the same legal status as the mother.
5. Inheritance method
5.1 Development of the Qur'an Inheritance Regulations
-Inheritance law = "Study of allocation (ʿilm al-farāʾ id)": There are many provisions directly derived from the Qur'an, and it is highly religious.
Stage 1: Designated inheritance (Arab customary law). Asaba center. Some corrections by the Qur'an.
Second stage: Introduced legal inheritance in the Qur'an. Inheritance is granted to relatives including non-Asaba (“allocated heirs” = husband, wife, daughter, father, mother, brothers and sisters).
Stage 3: Amendment by the Prophet Muhammad (➡ Two major principles of Islamic inheritance law).
① "No bequest to legal heirs".
② "I (Sad Bun Abbey Wackers) got sick in Mecca, the Prophet visited me (...), and when I said," I want to hand over all my property after death, "he said," If you say "no", then "half", he answers "no", then "one-third", he says "1/3, that's enough. It is better for you to make the heirs wealthy than to make them beg. "-At this time, Sad had only one daughter."
5.2 Legal heirs
① Spouse (assigned heir).
② Kinship:
Allotted heirs: daughter, "grandchild", father, "grandfather", mother, "grandmother", same parent / half-sister, half-sister.
b. Asaba: (i) Male-male kinship (original Asaba).
(Ii) Semi-Asaba (female relatives): 1/2 of the male inheritance of the same rank (Q4: 11 etc.).
c. Non-Asaba: All except a and b
③ Guardian: Former owner of freed slave.
④ JFC: When no one has an heir.
Cf. Waqf as an important system related to inheritance
・ Donation system in Shariah. To abandon the ownership of one's property (in principle, real estate), determine that the proceeds will be used for a certain charitable purpose, and hand it over to a designated trustee.
(1) Charitable waqf: A waqf purely for religious and charitable purposes.
(2) Family Waqf: The setter has (self and) his / her clan (often "children and grandchildren") as beneficiaries. It spreads to protect household goods from confiscation by the state and to evade the Islamic inheritance law.
-Actually eclectic (due to Waqf's permanence, beneficiaries shift to poor when the clan is cut off). (2) is also included in (1) in principle.
・ Emphasis on distinction in modern times (① = “good waqf”, ② = “bad waqf”) ➡ Abolition of ② by the Waqf reform movement.