A Comparative Study of the Legal Status and Legislation of Polygyny in Iran and Selected Islamic Legal Systems

Abstract

Polygamy, as one of the most challenging institutions of family law in Islamic countries, is the intersection of traditional jurisprudence, modern social developments, and legislative policies. This research, using a descriptive-analytical method and a comparative approach, examines the legal status and regulatory mechanisms of polygamy in the Iranian legal system and compares it with the countries of Iraq, Syria, Morocco, and Tunisia. The fundamental goal of the article is to explain the transition from the absolute freedom of the male will in classical jurisprudence to the paradigm of the state's discretionary supervision in contemporary laws. The research findings indicate that all the systems studied, with the exception of Tunisia, have accepted the principle of religious permissibility and have transferred this institution from the private to the public sphere. In this regard, three legislative patterns were identified: first, “Supervisory Pattern” in Iran and Syria, focusing on ensuring financial means; second, “Deterrent Pattern” in Iraq and Morocco, requiring strict conditions such as objective justification and legitimate interest, and in Morocco, women are given the right to immediate divorce; and third, “Sanctions Pattern” in Tunisia, ruling for the civil nullity of marriage. The comparative results show that the most important common challenge is the deep gap between “Shar’i Validity” and “Legal Prohibition”, so that marriage without permission, although regarded a criminal act, has legal consequences. A distinctive feature of Iran is the existence of “Broken Marriage” institution, which practically weakens the functioning of legal restrictions. Ultimately, the outcome of the developments reflects a move towards "Judicializing" the marriage process and limiting polygamy with the aim of strengthening the foundation of the family, although the Moroccan model has been more successful in creating a balance between tradition and the time requirements.