Marriage Laws and the
Disabled
A Comparison between the United
States, ADA, UN, and Iran
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
History on how laws have
changed…
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.

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.

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”

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”
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.

Can they or Can’t 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?

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.

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.
Marriage in Iran
Marriage is a type of business contract for
the selling of a woman’s 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 Iran’s marriage law does not
specifically address disability, their
“dissolution” statues do....

History of Law in Iran
Islamic Law, constitutional law, legislation,
and informed sources such as customs.
 Applicable legislation on Marriage law
comes from Iran’s Constitution, the 1989
Family Protection Act, and Iran’s Civil
Code, which specifically addresses
disability when discussing permissible
grounds for the dissolution of a marriage.

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.
1989 Family Protection Law

“leaving men’s 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.”

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 women’s divorce rights are
limited to contract violations.

“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
4:34]
What Iran’s “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
husband’s 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…”
Dissolution continued…

This law makes it clear that mental and
physical disabilities are grounds for
claiming the dissolution of a marriage in
Iran
The Civil Code and Disabilityimplied 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.

Defining Disability
Inability to fulfill social
role (providing for
family, spouse)
 Social class (status,
money)
 Gender

Case Examples

The Epileptic Wife

The boy with Cerebral Palsy
Iran’s Marriage Law vs. Marriage
Law in the United States
Rights/Responsibilities of Men and Women
 Dissolution based on disability
 Protection against Discrimination
 Abortion

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

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

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
