Arbitration in Family Matters

Arbitration in Family Matters

Family is one of the most important pillars of human society and is widely regarded as the central foundation for individual development and growth. At the same time, conflicts and disputes within the family, like in any other institution, are inevitable. Where a dispute concerns this core institution, the resolution process should be conducted in a manner that, as far as possible, avoids harming the family’s dignity and status.

This article seeks to address whether there is an effective method for resolving family disputes in a way that causes less harm to the family’s standing and to its members. In this context, it may be argued that referring disputes to arbitration, in accordance with the conditions set out in Surah An Nisa of the Holy Quran, may help prevent damage to the family’s reputation and sanctity, as well as to the reputations of its members. However, the legislator’s approach to resolving family disputes through arbitration does not align closely with the framework articulated in the Holy Quran. This article reviews the prevailing approaches to family disputes and arbitration.

The Role of an Arbitration Agreement in Resolving Family Disputes

Arbitration in Family Disputes

In its lexical sense, an arbitrator is a judge, a person who delivers justice, a decision-maker, or someone who settles disputes among people. The term may also refer to a person who does not hold a governmental judicial position and whose role is limited to resolving disputes, examining potential and existing claims, and issuing a decision. This meaning is closer to the legal concept of arbitration.

In legal terminology, arbitration is the resolution of disputes by one or more third parties outside the court system. This definition applies to different forms of arbitration, including commercial, civil, and family disputes.

It should be noted that arbitration in family disputes is not identical to arbitration under the Civil Procedure Code. In family disputes, the arbitrator’s jurisdiction is limited to addressing disputes between spouses. Accordingly, the scope of review is confined to marital disputes. By contrast, under the Civil Procedure Code, arbitration is not subject to such a limitation and is only excluded in specific cases, including disputes relating to the essence of marriage and divorce, pursuant to Article 496 of the Code of Civil Procedure of the General and Revolutionary Courts.

In addition, arbitrators under the Civil Procedure Code are generally required to be an odd number. Under Article 28 of the Family Protection Law, the most recent law specifically addressing arbitration in family disputes, each spouse must nominate an arbitrator from among their relatives. As a result, the number of arbitrators in family disputes is 2, an even number.

Scope of Arbitration in Family Claims

In family matters, in addition to divorce claims, disputes may arise regarding mahr (dowry), alimony and maintenance, child custody, and related issues. Under Iranian law, where a woman files a petition to claim mahr, child visitation, child custody, maintenance for relatives, spousal maintenance, delivery of household items, or compensation for services during marriage, arbitration is not required.

It should also be noted that, except in limited circumstances, referring the above matters to arbitration is not prohibited by law.

Family disputes that are not capable of being referred to arbitration include:

• Annulment of marriage.
• The essence of marriage.
• The essence of divorce.
• Lineage issues and all matters classified as non-contentious or probate-related affairs.

Qualifications of Arbitrators in Family Disputes

Arbitrators appointed to resolve disputes between spouses must meet certain requirements, including:

• Soundness of mind.
• Legal maturity.
• Puberty.
• Justice and integrity.
• Being Muslim.
• Expertise in family matters, including religious and social aspects.
• Being related to the spouses.
• The appointment of two arbitrators.
• Good faith and being married.

Mandatory Appointment of Arbitrators in Family Cases

Under the Family Protection Law, referral to family arbitration is contemplated for non-consensual divorces and divorces requested by either the husband or the wife. By contrast, referral to arbitration is not required for divorce in absentia or for mutual consent divorces.

Where the parties wish to formalize an agreement outside the court system, they may refer to legal and arbitration institutions and request the appointment of an arbitrator to record their arrangements in a formal written instrument.

Who May Not Serve as a Family Arbitrator?

Even with the parties’ agreement, the following persons may not be appointed as arbitrators:

• Persons who have been deprived of the right to act as arbitrators by a judicial order.
• Persons convicted of intentional crimes.
• Judges and administrative staff of the judiciary.
• Members of the Islamic Consultative Assembly.
• Persons with an interest in the dispute.
• Foreign nationals.

Frequently Asked Questions About Arbitration in Family Matters