Marriage Laws and the Disabled

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Marriage Laws and the Disabled

• A Comparison between the United States, ADA, UN,
  and Iran

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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

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History on how laws have changed

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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.

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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.

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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

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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

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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.

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Can they or Cant 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?

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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.

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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.

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Marriage in Iran

• Marriage is a type of business contract for the
  selling of a womans 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 Irans marriage law does not specifically
  address disability, their dissolution statues
  do....

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History of Law in Iran

• Islamic Law, constitutional law, legislation, and
  informed sources such as customs.
• Applicable legislation on Marriage law comes from
  Irans Constitution, the 1989 Family Protection
  Act, and Irans Civil Code, which specifically
  addresses disability when discussing permissible
  grounds for the dissolution of a marriage.

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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.

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1989 Family Protection Law

• leaving mens 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.

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• 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 womens divorce rights are limited
  to contract violations.

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• 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 434

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What Irans Dissolution Laws mean for people
with disabilities

• Civil Code any physical defect, in husband or
  wife, is legal grounds for claiming dissolution
  
• proven insanity of either spouse the husbands
  castration or inability to consummate marriage
  defect of the wife interfering with conjugal
  relations or her total blindness, contracting
  leprosy or becoming seriously crippled if they
  existed at time of contract

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Dissolution continued

• This law makes it clear that mental and physical
  disabilities are grounds for claiming the
  dissolution of a marriage in Iran

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The Civil Code and Disability- implied soft law

• A physically disabled man from a wealthy family,
  so long as he can consummate the marriage, can
  purchase a wife and procreate legally.
• A man can buy immunity from this stipulation.
• The social role assigned to women within Islam
  would make a similar arrangement for a disabled
  woman unlikely.

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Defining Disability

• Inability to fulfill social role (providing for
  family, spouse)
• Social class (status, money)
• Gender

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Case Examples

• The Epileptic Wife
• The boy with Cerebral Palsy

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Irans Marriage Law vs. Marriage Law in the
United States

• Rights/Responsibilities of Men and Women
• Dissolution based on disability
• Protection against Discrimination
• Abortion

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Iran and the UN Declaration of Human Rights-
Article 16

• ALL Men and Women vs. the inequality of Men and
  Women
• Equal Access to the Contract vs. Status
• Negative Paradigm of people with disabilities and
  marriage
• Consent

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US and the UN Declaration of Human Rights

• The current hard law holds true
• Men and Women receive equal rights under the
  contract of marriage
• Both parties must have full consent upon entering
  the agreement

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Conclusion

• Hard law does not necessarily indicate social
  policy
• Between a man and a woman
• Full legal capacity
• Civil Contract
• Family and children are procured