Established in 1959, the Iraqi Personal Status Law (PSL) is considered to be one of the most progressive legal frameworks in the Arab region. It covers significant aspects of women's rights in areas such as marriage, divorce, and child custody. The law stipulates that individuals must be eighteen years old to marry, with exceptions allowing marriage at fifteen years old under specific conditions that require the court approval.

Since then, Shiite members of parliament (MP) in Iraq have repeatedly attempted to amend the Personal Status Law. Based on sectarianism, they have aimed to reinforce male authority and diminish women’s rights relating to marriage, divorce, and child custody. On paper, the amendments to Law 188 of the PSL would give Iraqis the option to have family affairs handled by either religious authorities or the civil judiciary. In practice, this could empower extremist and conservative dynamics, resulting in diminished rights related to inheritance, divorce, and child custody as well as lowering the minimum age of marriage for Muslim girls. This could create a parallel legislative authority imposing laws based on narrow interpretations of Islamic Sharia Law, challenging state authority, and undermining the constitutional right to equality.

In the long run, this blurs the line between conservative cultural practices, religion and legal customary norms. The most recent amendment proposed by a Shiite MP has generated significant backlash from political parties, feminist civil society organisations, human rights advocates, intellectuals, and a significant portion of the Iraqi population. As a result of opposition from numerous MPs, the Iraqi parliament decided to remove the first reading of the proposed amendment to the Personal Status Law from its agenda during the October 2nd Wednesday session. Despite this, the Coordination Framework, representing Shiite political forces in the government, remains committed to advancing the amendment, raising concerns about its implications for women’s rights and sectarianism in Iraq. 

Currently, the law grants the mother the right to custody and to oversee the child’s upbringing both during marriage and after divorce. This right to custody is not forfeited even if she chooses to remarry. Once the children reach the age of fifteen, they have the right to choose which parent they wish to live with, provided the court deems their  choice to be made with caution. Additionally, the law states that matters surrounding divorce– including separation and alimony –are governed by the relevant, civil law bodies of the court.

The recently proposed amendments to the law aim to establish  a legal code comprising two sections: one focused on  Sharia rulings according to the Ja'fari Shia school and the other addressing Sunni Sharia rulings. These rulings will be developed by the Scientific Council of the Shia Endowment and the Scientific and Fatwa Council of the Sunni Endowment offices. Following their development, the proposals will be submitted to parliament for approval within six months of the law’s enactment.

Sections (b) and (t) of Article 1 in the proposed amendment introduce a “Code of Sharia Rules on Personal Status Issues”, which may permit broad interpretations of jurisprudence, potentially resulting in unequal and unjust applications of the law. Additionally, Sections (th) and (j) of Article 1 assign prominent clerics from both the Ja'fari Shia and Sunni schools to draft the Code. This raises concerns about the transparency and fairness of human rights standards, as relying heavily on clerical opinions may compromise objectivity and inclusivity in addressing personal status issues. Furthermore, Article 2 of the amendment permits the validation of Sharia marriage contracts outside of judicial bodies, encouraging marriage outside of official courts without adequate legal protections for both spouses.

Furthermore, the amendment would deprive a mother of custody rights in the case she remarries. If she does not, the child would be given the choice of which parent to live with by the age of seven. The amendment also stipulates that divorce should follow either Sunni or Shia jurisprudence based on the couple's choice. If the wife does not adhere to a specific jurisprudential school, the court will apply the husband’s school of thought in matters of rights. Empowering the Sunni and Shia institutions in matters of divorce and separation is seen as reinforcing sectarianism in state and judicial administration, ultimately distancing Iraq from its civil and secular oriented constitution.

Iraqi citizens’ reactions to the Personal Status Amendments and proposed changes

The proposed amendments to the Iraqi Personal Status Law have stirred significant reactions on social media from civil society organisations, feminist activists, various sectors of the community, and even some politicians whose interests align with or are affected by the political forces advocating for these changes.

They have organised campaigns rejecting the amendments due to its negative impact on the already fragile state of civil life in Iraq. The  proposed amendments are perceived  as a regression from the achievements of the 1959 law, which provided Iraqis with a civil status for handling personal matters. In contrast, political forces, particularly those of a Shia nature, seek to revert Iraq to a pre-state condition and replace civil law with Islamic Sharia.

The main reasons for the rejection of the amendments by civil entities in Iraq fall under 5 main themes.

Firstly, regarding marriage below the legal age, the amendment proposes lowering the minimum age of marriage for girls from 18 to 9. It deprives women of inheritance rights in real estate, and also mandates enjoyment as a condition for alimony, meaning a wife who does not provide enjoyment to her husband will not receive alimony. 

Second, the amendment permits marriage outside of the official judicial court system. This could exacerbate cases of informal marriages and the phenomenon of child marriages. It also reinforces sectarianism and societal division by subjecting marriage to religious authorities rather than common and unified civil law. 

Third, the amendment is highly restrictive on matters of personal freedom. It requires couples to choose a specific religious school of thought for all personal status matters. This conflicts with principles of religious and intellectual freedom. If spouses disagree on the school of thought after marriage, they must resort to the court to resolve the dispute, potentially leading to legal complications and delays in resolving issues.

Moreover, the amendment grants the Sunni and Shia institutions the authority to validate marriage contracts, thereby favouring them over government bodies. This contradicts principles of justice and equality among all sects and religions. The validation process may also violate women's rights if there are no checks and balances mechanisms in applying Sharia laws.

Lastly, the amendment relies on the opinion of the Scientific Council in jurisprudence to resolve legal disputes without clear specifications of its powers and mechanisms. This could lead to varying interpretations and further complicate the application of the law.

Conclusion

The attempts to amend the Iraqi Personal Status Law represent a concerning development, as they threaten to undermine the legal and rights-based achievements made over the past decades. The proposed amendments are not merely about reshaping the legal framework governing personal relationships in Iraq but also seek to reinforce sectarianism and weaken the civil principles that are fundamental to achieving justice and equality.

It is essential to resist attempts to undermine the civil system and revert back to a pre-state condition in order to preserve individual rights and provide equal legal protection to all. Civil society actors are expected to continue to work diligently to oppose these amendments and strengthen justice and equality in Iraq. By adopting a civil legal approach that transcends sectarian divisions and upholds human rights, they can support civil values and protect individual liberties, ensuring the development of a just and fair society for all its people.

The information and opinion contained  in the articles on the CFRI website are solely those of the author(s) and do not engage the responsibility of the centre.

To cite this article : Hiyam Ali, "How Legal Reforms in Iraq’s Personal Status Law Institutionalise Sectarianism and Threaten Women’s Rights", Centre Français de recherche sur l'Irak (CFRI), 11/10/2024, [https://www.cfri-irak.com/en/article/how-legal-reforms-in-iraqs-personal-status-law-institutionalise-sectarianism-and-threaten-womens-rights-2024-10-11].