A Comparative Analysis of Marital Financial Agreements in Safeguarding Women’s Economic Security: From Traditional Legal Regimes to Modern Contractual Models

Abstract

In recent decades, progressive legal systems, seeking to respond to fundamental transformations in the economic structure of the family, have moved away from traditional, mandatory-rule-oriented approaches toward greater contractualization of spouses’ financial relations. In the English legal system, the predominance of the paradigms of formal equality and contractual autonomy has resulted in the erosion of default financial obligations and their replacement by a non-interventionist approach, thereby leaving women with a protective gap during marriage. By disregarding biological considerations and socially differentiated roles, this approach effectively makes women’s economic security contingent upon their capacity to manage contractual risks. In contrast, Islamic law, through the institutionalization of mahr (dower) as a default financial entitlement and the provision of powerful enforcement mechanisms, such as the wife’s right of retention, secures the wife’s financial independence irrespective of her employment status and, in principle, contributes to preventing situations of undue hardship to a certain extent. In contemporary legal systems, the transition from mandatory matrimonial property regimes toward private marital agreements has been regarded as a response both to the economic necessities of modern life and to increasing demands for the protection of women’s financial autonomy. This study aims to comparatively examine the status, legal foundations, and enforcement mechanisms of family financial agreements across different legal systems in comparison with the Iranian legal system. The research adopts a descriptive-analytical methodology with particular emphasis on comparative legal analysis. In developed legal systems, marital financial agreements have evolved from ancillary arrangements into strategic legal instruments whose validity rests not merely on the parties’ consent but also on standards of procedural fairness, including full financial disclosure and access to independent legal counsel. The principal innovation of this study, in addition to addressing the question of how marital financial agreements affect women’s economic security in the transition from traditional legal regimes to modern contractual models, lies in proposing a framework for the formal institutionalization of family agreements in Iran. Under this framework, the legal capacity of directly enforceable instruments may be utilized, while statutory duties are distinguished from contractual obligations, so that women’s economic security can be safeguarded without destabilizing the foundational principles of the institution of the family.