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Shiite Personal Status Law of Afghanistan (2009) – 1: Competence and Personality

In the name of Allah, the Beneficent, the Merciful

Shiite Personal Status Law Competence and Personality

PART I: COMPETENCE AND PERSONALITY

CHAPTER ONE: GENERAL PROVISIONS

The Basis

Article 1:

This law has been enacted in accordance with article 131 of the Constitution of Afghanistan for regulating the Shiite Personal Status Law.

Implementation of this Law

Article 2:

(1). To implement this law in the courts, the Supreme Court of the Islamic Republic of Afghanistan shall appoint eligible Shiite judges.

(2). When issues arise that are addressed by the provisions of this law, the court shall decide accordingly, and Ijtehad [derive and deduce religious opinion about some matter] shall not be allowed.

(3). When issues arise that are not addressed by the provisions of this law, the court shall decide in accordance with Ja‘fari jurisprudence based on a current, valid Shiite Marja Taqlid Fatwa [a recognized religious authority that issues ruling on a point of Islamic law] Whenever the plaintiff and defendant select different Marja Taqlid Fatwas, issues/cases dealing with victim’s rights shall proceed in accordance with the plaintiff’s Mujtahed’s Marja Taqlid Fatwa; issues/cases dealing with public rights [Hoquuqallah] shall proceed in accordance with the defendant’s Mujtahed’s Marja Taqlid Fatwa.

(4). Whenever plaintiff and defendant are followers of different religions, or different sects of the same religion, and their respective religious provisions contradict; issues/cases dealing with public rights [Haqallah] shall proceed in accordance with the religion of the defendant; issues/cases dealing with victim’s rights shall proceed in accordance with the religion of plaintiff.

CHAPTER TWO: COMPETENCY

Definition and Types of Competency

Article 3:

(1). Competency is the inherent authority through which a human obtains his/her rights and obligations, starting from birth and ending with actual or legal death. There are two types of competency:

  1. Possessive Competency is the authority [capacity] of a person to obtain their rights and entitlements. This also includes those who are deceased, insane, incompetent, and a fetus.
  2. Utilization Competency is the authority [capacity] of a person to execute and/or benefit from the use of his/her rights.

(2). A person is a real or legal entity with all the rights and obligations allowed or required by law.

Depriving the Right of Possessive Competency

Article 4:

(1). Possessive Competence cannot be taken away, however based on provisions of this law the court does have the authority to temporarily restrict a person from exercising a right or specific rights.

(2). No one can divest [give up] their competency or their authority to exercise all or part of his/her civil rights or the right that he/she has obtained according to law.

(3). Under certain circumstances a person may choose not to exercise his/her rights (such as relinquishing his/her rights related to a specific purchase transaction), or during a specific period of time (such as pledging not to marry until specific time) or from his/her partial right(s) (such as not buying a specific home).

Competency and Rights of a Pregnancy and a Fetus

NOTE: The Dari terms “pregnancy” and “fetus” refer to different stages of development within a pregnancy – “fetus” is used until human features appear, thereafter the term “pregnancy” is used.

Article 5:

(1). If the pregnancy results in a live birth, the fetus obtains competency at conception. In cases where there is a question as to whether live birth occurred, there must be confirmation as to whether the baby was in fact born alive.

(2). The fetus and pregnancy has the following rights:

  1. Will become an heir, if born alive.
  2. To be the subject of a confession.
  3. Will be eligible to receive donation.
  4. Abortion is forbidden, and the person performing the abortion will be liable to pay dia [blood money and compensation paid to the victim].
  5. Parents must provide for available medical treatment for that [fetus].
  6. Parents are prohibited from acting contrary to medical advice when that action may result in any kind of disability to the fetus.

Rights of the Deceased

Article 6:

(1). A deceased person has possessive and other rights pertaining to the following issues:

  1. To be the subject of a confession.
  2. If the deceased was murdered, dia shall be given to the deceased’s estate, if aggravating circumstances or other crimes result in additional dia it will also be given to the deceased’s estate, however, this dia shall not convey to the deceased heirs and shall be used to pay the deceased’s debts or for Khayrat [in this context, charity means burial and funeral expenses].
  3. Up to 1/3 of the deceased’s estate may be conveyed by a separate Will.
  4. Deceased has the right to have the cost of his/her burial paid from his/her estate.
  5. At the conclusion a limited Waqf [religious endowment], assets donated under the limited Waqf shall be returned to the deceased’s estate or his/her heirs.

(2). The deceased’s Will shall be enforced according to this law.

(3). Autopsies are forbidden, unless the deceased gave prior permission, or a justice or judicial organization [a Court] grants permission for the autopsy in order to determine the facts relating to the cause of death.

Maturity [of the mind]

Article 7:

(1). Maturity is the mental ability of a person to deal with financial transactions in a way that avoids unfairness or injustice to him/herself; those persons lacking this ability cannot possess Utilization Competency in dealing with assets.

(2). Maturity shall be determined by a Court.

(3). An incompetent person or a person having insufficient competency [those persons lacking Maturity] are subject to the provisions on Guardianship and Executor stated in this law.

CHAPTER THREE: ABSENT [MISSING] PERSONS

Definition of Absent Persons

Article 8:

This chapter includes the following definitions:
(1). Absent Person Known to Be Alive is someone who is absent but known to be alive, although his/her location may not be known and contact may or may not be possible.

(2). Absent Person Unknown to Be Alive is someone who has been absent for an extended period with no information available regarding whether he/she is alive or deceased.

Absent Person Known to Be Alive and Person Unknown to Be Alive

Article 9:

(1). If an Absent Person Known to Be Alive does not have an attorney or agent who will manage his/her goods, the Court, on its own motion or as result of a claim by an interested party or parties, shall appoint a trusted person or persons as a Trustee and Supervisor to manage the assets of the Absentee Person Known to Be Alive, including payments to creditors while also preserving the value of any assets.

(2). If an Absent Person Unknown to Be Alive has selected an attorney or a person (guardian, executor, or caretaker), bound in accordance with the law, to mange his/her assets, this responsibility will remain in effect until the Absent Person Unknown to Be Alive returns, dies or is declared deceased, or the attorney, guardian, executor, or caretaker dies or their authority has been withdrawn.

(3). If an Absent Person Unknown to Be Alive has not assigned an attorney to manage his/her assets or the person assigned to manage his/her assets based on the provisions of law, but is not available, the Court, on its own motion or as result of a claim by an interested party or parties, shall appoint a trusted person or persons as a Trustee and Supervisor to manage the assets of the Absent Person Unknown to Be Alive.

Preservation and Supervision of Absent Person’s Assets

Article 10:

(1). The preservation and supervision of an Absent Person’s assets inside the country, prior to the appointment of a trustee shall be the responsibility of a local Shiite scholar who is an agent of the Shiite Mujtahed[clergy practicing religious jurisprudence].

(2). The preservation and supervision of an Absent Person’s assets located outside of Afghanistan prior to the appointment of a trustee shall be the responsibility of the Embassy or Consulate of Afghanistan. The Embassy or Consulate shall appoint an interim trustee and refer the matter to the Supreme Court via the Ministry of Foreign Affairs.

Characteristics of a Trustee

Article 11:

(1). A Trustee shall have the following characteristics:

  1. Utilization Competency in order to manage assets and financial transactions.
  2. Sufficient ability to preserve and manage the assets of an Absent Person.
  3. Can provides adequate surety
  4. No law suits or criminal complaints filed [by the Trustee] against the Absent Person.
  5. A court decision declaring the Trustee is neither broke nor bankrupt.

(2). An heir meeting the conditions set forth in Paragraph 1 of this article, shall have priority over others.page8image22800

Types of Supervisors

Article 12:

(1). Based on the provisions of this chapter the Supervisor is a person appointed by a court to supervise the performance of a trustee. There are two types of Supervisors:

1. Esteswabi Supervisor approves [person who makes the right decision in the interest of the other person] the actions of a Trustee and may provide such approval both prior to and after a Trustee’s action.

2. Etlaee Supervisor receives reports on the Trustee’s action’s regarding the management of the Absent Person’s assets; but he/she [Trustee] may act contrary to the intentions of him/her [Supervisor].

(2). Etlaee Supervisor shall report, to the Court, any illegal activity or fraudulence by the Trustee.

Responsibilities of the Trustee

Article 13:

(1). The Trustee has the following responsibilities:

  1. Manage carefully and preserve the assets of the Absent Person.
  2. Safeguard the Absent Person’s interests during the sale, change or use of assets with a limited useful life or that may expire [lose value].
  3. Pay Maintenance to those persons for whom the Absent Person is/was responsible; and paying his/her [Absent Person’s] debts.
  4. Pay valid fee(s) of the person(s) who managed and preserved the Absent Person’s assets prior to the appointment of the Trustee, or who provided services that preserved assets.
  5. Collect debt payments due to the Absent Person and receiving assets he/she [Absent Person] inherits. If a debtor denies [disputes] a debt, the Trustee may sue the debtor, but there should be no settlement that is not in the interests of the Absent Person.
  6. With Court permission and when no other option is available, sell the Absent Person’s immovable property to satisfy a debt(s) or pay Maintenance obligations.
  7. Perform all those obligations of the Absent Person which are possible [for the Trustee] to perform.
  8. Provide to the Court an annual report and accounting of assets; including a final report and accounting at the end of his/her appointment.
  9. Shall not buy the assets of the absent person for himself or his family or sell his and his family’s assets to the Absent Person without permission from the court.

(2). The Trustee will be liable for losses resulting from negligence or actions exceeding the Trustee’s scope of authority set forth in Paragraph (1) of this Article. If the Trustee acts with criminal intent, he/she may also be subject to prosecution.

Removal of Trustee and Supervisor

Article 14:

The trustee and supervisor shall be removed by the court in the followings circumstances:

  1. In the case of the non-existence of any conditions set forth in Article 11 of this law.
  2. In the case of the intentional non-performance of duties or showing negligence in this regard.
  3. In the case of a violation of duties or the unlawful possession of the assets of the absentee.

Discharge of Duties of Trustee and Observer

Article 15:

(1). The responsibilities of the trustee and the supervisor shall be discharged in the following circumstances:

1. When the absentee appears.
2. When the actual death of the absentee is determined.
3. When the death of the absentee is determined by court order.

(2). The court, after the passage of 10 years from his/her disappearance or after four years of searching with the permission of the court with no evidence of his/her whereabouts, may issue an order distributing the estate of the absentee among the heirs.

(3). The wages of the trustee and the supervisor shall be paid by the court from the property of the absentee.

Conditions for Determining the Legal Death of the Absentee

Article 16:

In any of the following circumstances, the heirs, the guardian, the executor or a legatee can demand that the court issue an order determining the legal death of an absentee:

  1. A long period of time has passed from the last news of the existence of the absentee that demonstrates that the absentee is probably dead, or naturally will not survive for an extended period of time.
  2. If a group of persons dies in an accident and the absentee is assured to have been among them.

Consequences of a Determination that the Absentee is Legally Dead

Article 17:

The consequences of a determination of the absentee’s legal death are as follows:

  1. Discharge of the security of the trustee.
  2. Distribution of the assets of the absentee among the heirs when the legal death of the absentee is determined.
  3. Execution of a will or testament in accordance with the provisions set forth in this law.
  4. Payment of the delayed debts of the absentee by the heirs. Dissolution of the marriage contract between the absentee and his spouse after four years of unsuccessful searching for the absentee with the permission of the court; provided that the spouse shall be subject to the waiting edat [waiting period] in accordance with the provisions set forth in this law.
  5. If the spouse is certain that the absentee is dead, then the marriage contract should be dissolved without any specific time period and without searching; in that case the spouse shall observe the death edat [four months and 10 days].

Determining Death or Life of the Absentee, after the Court has issued an Order Determining that the Absentee is Dead

Article 18:

(1). If after the issuance of an order determining that the absentee is dead, his/her actual death is proved, or if it is determined that before the issuance of the order determining the death of the absentee by the court, that the absentee was alive, the actions that were carried out for the protection of the absentee’s assets shall be void.

(2). If the date of actual death causes any changes in the asset distribution or any other legal activities the court shall take into consideration these changes; for example, if the number of heirs decreases, the heirs who do not have Fixed Shares [specified in Quran] shall be deprived from having possession [the assets of the absentee] and shall be distributed to actual heirs.

(3). If after the issuance of the order determining the death of the absentee, it is determined that he/she is alive, the assets which were distributed to the heirs or legatees shall be returned in its original form if they exist, and if the asset no longer exists, they shall return goods of similar value.

Maintenance of the Spouse of the Absentee

Article 19:

If the spouse of the absentee is being supported by the assets of the absentee or by his father or grandfather, then based on the presumption that the absentee is still alive, the spouse shall wait until she receives news that the absentee is actually dead; however, if the spouse is receiving maintenance from others she does not need to wait for news of the actual death of the absentee.

Wife’s Second Marriage and her Maintenance

Article 20:

(1). If the wife is certain about the death of the absentee husband and after the court has issued an order determining the death of the absentee, and she waits until the expiration of edat[four months and 10 days], and even after she remarries [the absentee appears], the first marriage shall exist and the second shall be invalid; however, if the women has had sexual intercourse with the second husband, she shall complete her edat. If after four years of searching based on the order of the court and after dissolution of the marriage contract and completion of the edat, the absentee appears [the appearance] may not effect the dissolution of the first marriage contract; however the spouse has the option to stay with the first husband or remarry; but after the completion of the edat, the spouse remarries, the second marriage contract will remain in place.

(2). If the existence of the absentee has been determined, the spouse is entitled to maintenance for the four year searching period, based on the issuance of a court order the wife is entitled to maintenance until the end of her edat.

Revocability of Court Divorce

Article 21:

A divorce by court order is revocable. If the absentee appears before the expiration of edat, he is eligible to rejoin his spouse, but the spouse shall pass the death edat (waiting period of four months and ten days).

News of Actual Death

Article 22:

If the news of the actual death of the absentee comes during the period of the four year search, or after its expiration and before the completion of the edat, the spouse shall complete the death edat.

Death of Wife During Edat [waiting period of four months and 10 days]

Article 23:

If the spouse, during the death edat, dies and later the news of the absentee’s actual death or being alive comes, they shall inherit from each other.

Lack of Authority of the Attorney

Article 24:

If an attorney does not have authority and permission to fulfill the civil and social obligations of the absentee, for any certain matter; the court may assign the same attorney, or another person, for that [the abovementioned circumstances].

CHAPTER FOUR: LEGAL INCOMPETENCE

Definition and Types of Legal Incompetence

Article 25:

(1). In the context of this chapter, legal incompetence is the inability or deficiency in the capacity of a person to exercise financial rights or to utilize property or assets which are determined by this law.

(2). A legal incompetent is a person that due to his/her mental inability is forbidden to manage his or her own property and he or she is also forbidden to use his or her property or legal rights.

(3). Legal incompetence is of two types:

1. Masloob-ul-Elabara (One who is banned from expression) Masloob-ul-Elabara is a person whose actions and expressions in a contract and other decisions are invalid.

2. A legal incompetent in action is a person who does not have the right to exercise his or her financial rights or use his or her property.

Grounds for Incompetence

Article 26:

The grounds for incompetence are as follows:

1. Being a minor

2. Insanity

3. Imbecility

4. Drug addiction

5. Mental illness

Signs of Maturity

Article 27:

When a boy reaches the age of 15 or ejaculates and a girl sees the blood of her menstruation, they are considered to have reached puberty.

Definition of Insanity

Article 28:

(1). Insanity is an illness that causes derangement of the mind or lack of intelligence in a person and can be of two kinds:

1. Periodical insanity.

2. Permanent insanity.

(2). The insanity that proves the inability of the insane person in the exercise of their financial rights and use of assets shall be considered a reason for legal incompetence.

(3). The exercise by an insane person of his or her property or financial rights is invalid. A periodically insane person during his or her periods of sanity shall be excluded from this provision; however if there is a dispute over his or her competency, the periodically insane person shall be assumed to be competent.

Definition of Imbecility

Article 29:

(1). An imbecile is a rational and mature person whose ability to reason regarding the management of property and financial rights is not equal to the reasoning capabilities of a normal person as known by tradition.page13image23440 page13image23600 page13image23760

(2). The exercise by an imbecile in financial rights and use of property, even if the imbecile is in control, shall be void.

(3). Nonfinancial exercise by an imbecile shall be valid unless it has a financial effect; for example, a marriage and reconciliation; in that case a guardian shall determine and take control.

[Definition of] Drug Addiction

Article 30:

(1). Drug addiction is a kind of illness in which a person as a result of using a psychotropic substance loses the conscious ability and causes disturbance of his or her intentions.

(2). Exercise of the addicted in property and financial rights set forth in paragraph 1 of this article shall be void.

Mentally Disordered Person

Article 31:

(1). A mentally disordered person is someone who does not have the ability to reason in all affairs of his/her life.

(2). The acquisition and exercise of property and financial rights by a mentally disordered person stated in paragraph 1 of this article is invalid.

Bankrupt

Article 32:

(1). A person who is bankrupt is someone whose debts are more than his/her assets.
(2). The court shall determine the bankruptcy of a person based on the following conditions:

  1. If the court determines his/her debts.
  2. His/her current debts are more than his/her properties.
  3. In case that the creditors ask the courts for confinement of the property and banning of financial acquisition of the bankrupt.

(3). The court shall not order the bankruptcy and banning of financial rights and property of a person unless it is asked by the creditors of the debtor.

(4). Issuance of an order of the court for the bankruptcy of a person shall not change the character of the debts from long-term to present.

Possession (of property) by a Bankrupt Person after the Issuance of the Order

Article 33:

All of the acquisitions of a bankrupt’s property and financial rights after the issuance of the order of bankruptcy, which are harmful to the creditors, are invalid. The expenses of the debtor, and the persons whose maintenance depends on the bankrupt person, to the reasonable extent, shall be excluded from this provision.

Confession of Bankrupt

Article 34:

If a bankrupt person after the issuance of the order of bankruptcy commits or confesses a debt or a contract for the benefit of others, which may harm creditors, the confession is acceptable. However, if the person who accepts the confession is one of the creditors, and the property is divided between creditors, then the confession is not acceptable unless all of the creditors confirm his confession.

Sale of the Property of the Bankrupt Person by the Court

Article 35:

(1). The court shall issue an order for the sale of all of the properties of the bankrupt person, and the exchange of the property shall be divided among the creditors based on their shares. The following circumstances are excluded in this provision:

1. Residential home as defined by tradition.
2. Transportation as defined by tradition.
3. Means and tools required for the occupation of the bankrupt person. 4. Necessary home appliances.

(2). The assets stated in paragraph 1 of this article are considered exempted if the lack of having them will cause difficulties in the bankrupt’s routine life, and as determined by the court.page15image11320 page15image11480

Rights of Priority Among the Creditors

Article 36:

If a creditor locates the actual property that the bankrupt person property has purchased from him on credit, he/she can repossess the property, and this creditor has a priority right over the other creditors to receive that actual property.

No Bankrupt Person shall be Imprisoned

Article 37:

The bankrupt person is required to pay the remaining debts after the distribution of assets as the court determines. The court cannot imprison the bankrupt person because of his or her inability to pay his or her debts.

Drunkenness

Article 38:

Drunkenness is the state of being intoxicated by using narcotics, alcohol or other intoxicating substance to the extent that a person’s mental faculties and his or her will are noticeably impaired for a period of time. Drunkenness results in legal incompetence.

Prohibition from Unreasonable Possession

Article 39:

The court, if demanded by persons of interest, can ban those who do not regard/observe modesty in spending their personal wealth (property) or spend in an illegal or irrational way or if s/he spends lavishly or extravagantly from a portion of his wealth.

Order [of Court] Regarding Legal Incompetence

Article 40:

(1). The legal incompetence of an imbecile, insane, addicted, or mentally ill person shall be decided whenever signs of any of these conditions are noticed based on the provisions of this law.

(2). If the court decides upon the legal incompetence of a person described in paragraph 1 of this article, the order shall include consideration of the entire time of in which the person was deemed legally incompetent.

Acquisition of Property by Imbecile Before Issuance of Order

Article 41:

If the court issues an order of legal incompetence of an imbecile, in this case the previous exercise by or conduct of the imbecile in the use of property and financial rights that were done during the imbecility are void, provided that the exercises shall not be in favor of the imbecile. Exercises of imbecile are absolutely void because of irrationality.

Financial Exercise by Distinguishing Minor [according to juvenile law - one between the ages of 7 and 13. Not mentioned in the this law] and Imbecile

Article 42:

(1). Independent financial exercise by a distinguishing minor and an imbecile is invalid, while it is valid just by permission of a guardian, an executor or a supervisor. The silence of a guardian, an executor or a supervisor or not declaring the conduct void after becoming aware of an issue and having the opportunity to declare it void, causes validation of the conduct.

(2). When an independent financial exercise by a distinguishing minor or an imbecile does not result in commitment, such as possession of licit goods or accepting gifts without consideration, shall be valid, provided that the gift is received by the guardian of the minor.

Liability of Legal Incompetents

Article 43:

(1). If a person hands over his goods for any reason to a minor, an insane, mentally ill person, or an addict, and the goods are destroyed or damaged by them, the above-mentioned people shall not be liable.

(2). If a person hands over his goods to an imbecile in trust, and the imbecile does not have the right of possession of the goods, in case of the good’s damage or destruction, the imbecile shall be liable.

(3). If an undistinguishing minor [under the age of 7 in the juvenile code], an addict, an insane person or a mentally ill person causes any damage to others, compensation shall be recovered from the goods and assets of the person who caused the damage; however, if the guardian is proved negligent in not preventing the damage, then the guardian is liable to provide the compensation.

(4). When a distinguishing minor, an imbecile, or a periodically insane during the time of sanity causes damages to others, they are liable to provide compensation.

Intentionally Losing Sanity

Article 44:

If someone intentionally loses his or her sanity, this action does not release him or her from liability.

page17image7416

CHAPTER FIVE: GUARDIANSHIP

Definition and types of Guardianship

Article 45:

(1). Guardianship, in accordance to the provisions of this law is the power and authority given to a person to perform duties for others in limited circumstances; the person is called guardian while the person in custody is called ward.

(2). Guardianship can be of the following two types:

1. General Guardianship refers to the guardianship of an authorized judge who is responsible for the affairs of a person who is incompetent or has mental deficiencies. 2. Specific [or special] guardianship refers to the guardianship of certain individuals and has two types:

- Qahri or Natural guardianship refers to the guardianship of father and paternal grandfather over the ward.

- Khaas or Appointed guardianship: a person appointed by the father or paternal grandfather for the affairs of the ward.

(3). The guardianship of the father or paternal grandfather is in accordance with the law and it does not need authorization by the court.

Persons under Special Guardianship

Article 46:

(1). Special guardianship shall be exercised on the following persons:

1. Minor.
2. Person with mental illness from childhood.
3. Imbecile, whose mental capacity is low either since childhood or afterwards.

(2). Exercise of specific guardianship on a mentally disabled person or imbecile, whose mental incapacity or insanity occurs after childhood, requires a court order.

Guardianship [of a Ward] by the Father and Paternal Grandfather

Article 47:

(1). Guardianship of a ward by the father and paternal grandfather is the same, and the exercise of either of them in the use of the ward’s assets is valid and cannot be invalided by the act of the other. In case of dispute between the father and grandfather in a ward’s affairs, the grandfather has priority over the father.

(2). The father or paternal grandfather in the absence of each other, with the permission of the other, or when one of them has become legally incompetent, can appoint an executor on their behalf in regard to the ward; however, as long as any of them have guardianship qualifications and they are alive, the other cannot appoint another executor.

Requirements for a Special Guardian

page18image22824

Article 48:

(1). The special guardian shall meet the following requirements:

1. Must have reached puberty
2. Be mature.
3. Be of the same religion.
4. Be trustworthy with respect to the ward’s property.

(2). If a special guardian does not meet the requirements set forth in paragraph 1 of this article, the court shall appoint a protector for the ward.

Appointed Guardian’s Authority

Article 49:

The natural guardian shall determine the limitation of the appointed guardian’s authority; any action by the appointed guardian outside of this authority is determined invalid. The appointed guardian by permission of the natural guardian shall be authorized to determine another appointed guardian.

The Jurisdiction of the Court over Assigning a Trustee

Article 50:

(1). The court, if requested by persons of interest, and even if there is a special guardian, may, in the following circumstances, appoint a trustee over the possessions of the ward:

1. If the guardian is not competent to manage the possessions properly

2. If the guardian disappears

3. If the guardian is proved to be dishonest

(2). If the trustee’s reason for appointment is no longer necessary, by request of interested persons, the guardian and the court shall dismiss the trustee.

Circumstances wherein the Guardianship of the Special Guardian becomes Invalid

Article 51:

(1). Under the following circumstances, the guardianship of the special guardian shall be revoked, and the court upon request by interested persons shall appoint a protector:

  1. If the special guardian becomes legally incompetent.
  2. If the court disqualifies the special guardian on basis of incompetency or breach of trusteeship.

(2). In case of revocation of the elapse circumstances of the guardianship mentioned in paragraph 1 of this article, the special guardian shall be competent to retain his guardianship.

Protectorate

Article 52:

(1). The protector is a trustee person who is appointed by the court in order to manage the affairs of a ward and his/her assets. Execution of general guardianship by him is called protectorate.

(2). The court on its own motion, or upon the request of an interested person, shall appoint a protector for the ward if he/she does not have a special guardian.

Wards’ Management of Property Before Determination of a Protector

Article 53:

(1). Ward management of property before determination of a protector by the court, is the responsibility of local Shiite scholars, and for the ward’s property abroad, the embassy and consulate shall determine a temporary protector.

(2). The embassy or the consulate shall proceed according to paragraph (2) article 10 of this law.

Determination of a Supervisor and a Protector

Article 54:

(1). The court in case of appointing several protectors; shall specify the limits of authority of each of them.

(2). The court shall appoint a person or persons as supervisor in accordance with article 12 of this law.

(3). In case of any dispute arising between supervisors and protectors or protector and supervisor, determining a solution is the responsibility of the court.

(4). The court can appoint a protector over several wards.

Condition of Being Protector

Article 55:

The protector shall meet all requirements of article 11 of this law. Relatives of the ward, in case of meeting the requirements, shall take priority compared to others in order to be assigned as a protector.

Appointing a Woman as a Protector

Article 56:

Whenever a [divorced or widow?] woman, including a ward’s mother, is appointed as a protector, in case of remarriage she is obligated to report to the court and the court may either dismiss her from the protectorate or assign a supervisor over her activities.

The Protector’s Options to Accept or Reject the Protectorate

Article 57:

The court shall inform the protector of the protectorate’s decision [him/her appointment as a protectorate]; the protector may accept or reject or may resign the protectorship at anytime.

Deposition of the Protector and Supervisor

Article 58:

(1). The court within the circumstances mentioned in article 14, shall dismiss the protector or supervisor.

(2). Interested people or the ward, by meeting the conditions set forth in article 14 of this law, may ask the court for the removal of the protector.

(3). The court shall inform the protector of his removal [released from his duties], and the protector’s acts shall not be enforceable furthermore.

Guardian’s Authority

Article 59:

(1). The guardian is considered the legal representative of the ward both in property [possessions] and in financial rights.

(2). If the guardian acts against the financial interests of the ward, such actions shall be deemed invalid.

(3). If the guardian leases the ward’s property for more than the guardianship period, after the conclusion of the period, the lease enforcement shall be subject to the ward’s approval.

Appointed Guardian’s Authority

Article 60:

(1). If the appointed guardian is proven to be acting in the interest of the ward, he/she shall have the following rights by permission of the court:

  1. Give up the ward’s right of pre-emption.
  2. Release debts on behalf of the ward.
  3. Solve the disputes of the ward.
  4. Practice those acts that are naturally harmful to the interests of the ward, like donations.

(2).The natural guardian may proceed with acts that are set forth in paragraph 1 of this article on condition of proving the harmlessness of the acts.

(3). The guardian cannot conduct acts of qisas (eye for an eye) or to pardon any person on behalf of the ward, unless it proves expedient for the ward.

(4). Whenever the guardian mistakenly, in good faith, practices a transaction that ends with the disadvantage of the ward, the guardian shall not be responsible.

Guardian’s Responsibilities

Article 61:

(1). The guardian is obligated to watch, protect and manage the ward and his/her possessions as well as prevent the occurrence of any legal offenses.

(2). Taking into consideration of the ward’s financial status, the guardian shall be obligated to manage the ward’s affairs in the following circumstances, providing that the ward shall not be under any other person’s guardianship:

1. Taking care of the ward’s cleanliness
2. Safeguarding the ward from harms against his/her body and life 3. Guard the ward from harming others
4. The ward’s medical treatment
5. Ensure education and nurturing opportunities for the ward

(3). Provide career building and vocational training opportunities for the ward (3). In case where a medical doctor advises that the ward should get married, the guardian by permission of the court and taking into consideration of financial status shall facilitate the marriage.

Observation of Trustee’s Duties by the Guardian

Article 62:

In managing the ward’s properties, the guardian shall observe the provisions of article 13 of this law.

Work Permission for the Ward

Article 63:

The guardian may permit the ward to have an occupation, in that case the permission shall include the requirements. (this may mean “tools” of the trade, or could also mean restrictions).

Guardian’s Responsibility

Article 64:

(1). The guardian is considered the trustee of the ward in financial matters. If the guardian acts without negligence results in damages to the ward’s financial or legal interests or property, the guardian shall not be held responsible.

(2). If the guardian fails to perform what he is legally obligated, in that case, he will be responsible for any relevant financial and non-financial damages.

(3). In case there are several guardians and they all jointly cause damage to the ward’s property, they all shall have joint responsibility. If only some of them cause damage, in that case, only those [responsible] shall be accountable.

(4). The appointed guardian and the protector cannot engage in any transaction without permission from the court on behalf of the ward; however the natural guardian is excluded from this provision.

(5). If the guardian takes possession of the ward’s property for his own interest, he/she shall be accountable to compensate the damage.

Complaint from the Guardian

Article 65:

Incompetent minors, imbeciles or any interested persons for the reasons of lack payment of life expenses and negligence in his providing nurturing, may request the court to remind the guardian of his/her legal obligations.

Donation to Person Placed under Guardianship

Article 66:

In case where assets are donated to a ward with a condition that the guardian may not utilize the assets, the guardian can only, by permission of the court, utilize the assets.

Guardian’s Fee from Ward’s Assets

Article 67:

The guardian’s remuneration shall be paid from the ward’s assets, if he/she is poor, [it shall be paid] from the natural guardian’s assets, and if the natural guardian is poor, it shall be paid by the state.

Removal of Guardianship after Reaching Adulthood

Article 68:

(1). The guardian, executor [appointed guardian] and protector, are obligated to request the court for removal of guardianship of the minor after he/she has reached Sharia-specified puberty, and for the imbecile, insane and addicted persons, at the point of maturity, and if maturity is approved by the court, the guardian, executor and protector shall request the court to return their assets to them.

(2). After the removal of the guardianship, the ward may complain about the misuse of his/her assets; in this event, if proven, the guardian shall compensate the ward for the amount of damages.page23image15120 page23image15280 page23image15440

Fetus’ Guardian

Article 69:

(1). The fetus’s natural guardian is obligated to protect the property of the ward. In the absence of a natural guardian, upon request of the relatives and interested persons, the court shall appoint a protector to manage the fetus’ property.

(2). The fetus’s mother has priority as the fetus’s protector, before other relatives. Other relatives have the priority as a protector over unrelated people.

(3). The guardianship of the fetus shall be terminated at the time of delivery.

Legal Aid

Article 70:

(1). The court upon request of interested people, shall provide legal aid for the following people:

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1. A person who lacks two out of these three senses:

- Hearing – Vision – Speech

2. A person who, for any reason (advanced illness, etc) does not have the capacity to properly manage his/her property.

(2). Remuneration of the legal counsel set forth in paragraph 1 of this article shall be paid from the property of the person who receives legal aid services.

Next: Chapter 2 – Family