Critique of Judicial Precedent No. 774 of the Supreme Court with Regard to the Violation of the Wife’s Rights

Abstract

Article 21 of the Law on the Enforcement of Financial Convictions, enacted in 2015, criminalizes the transfer of property by a debtor to another person by any means with the intent of evading debt. From this article, it can be inferred that the legislator considers only debts that have been established through a court ruling as falling within the scope of this provision. Even enforceable instruments must result in a court judgment to be covered by this article. The divergence of opinion concerning this provision led to the issuance of Judicial Precedent No. 774 dated April 9, 2019. According to this precedent, all debts—whether arising from enforceable instruments or otherwise—must be preceded by a court judgment in order to fall under the rule of transactions made with the intent to evade debt. This precedent supported the view of those who maintained that even enforceable instruments required a court ruling. On the other hand, the wife’s dowry (mahr) stated in the marriage contract constitutes an enforceable instrument that may be collected without resorting to the court and through the execution office of the Registry Organization. However, due to this judicial precedent, the wife must first petition the courts and obtain a judgment obligating the husband to pay the dowry. Only thereafter, if the husband engages in a transaction to evade payment of the dowry, will he be subject to the criminal penalty stipulated in Article 21 of the Law on the Enforcement of Financial Convictions. This judicial precedent reduces the credibility of official enforceable instruments and creates an avenue for husbands to evade payment of dowries, diminishes the authority of legal enforceable obligations compared to judicial rulings, and affords husbands the opportunity to transfer assets before the completion of judicial proceedings. These issues will be examined in this article.