RIGHTFULLY OURS

Although just a dress, a wedding gown is the newest shackle of the Iraqi parliament on the rights of children as young as 9 years old. The newest law passed by the parliament gives religious authorities power to decide on family affairs, including marriage, divorce, and the care of children. In light of this, the present explainer looks at the Iraqi family law jurisprudence, along with some of the present controversies raised by the new law.

Background

Iraq’s Personal Status Law (PSL) came into force in 1959 as one of the most progressive laws in the region at the time. It included a clear text eliminating the differential treatment between sunnis and shi’is and permitted any judge trained and appointed by the state to rule on all matters of personal status. Recourse to expert religious opinion was no longer required, and the realm of personal status was no longer controlled by the ‘ulama’. This law created a new framework in which women as citizens could legitimately negotiate on various persistent and contemporary issues. Moreover, it also increasingly enabled women activists to formulate and submit proposals for laws and amendments [1] .

Law no. 188 of the Personal Status Law, 1959 required a woman’s consent to marriage and emphasised her entitlement to a mahr according to articles 4-6 and 19-22 respectively. Article 7(1) stipulated that sanity and puberty were essential to marry, and article 8 stated that capacity to marry was complete on the attainment of the age of 18.

On August 4, 2024, the Iraqi parliament held the first reading of a bill amending Iraq’s personal status law. These amendments reinforce sectarian identity and undermine women’s rights. The draft amendment would overturn this equilibrium entirely by allowing couples signing a marriage contract to choose whether the provisions of the PSL or the provisions of specific Islamic schools of jurisprudence would apply. This essentially means that sect, not citizenship, would determine which rights different Iraqis are afforded in their personal lives, further entrenching sectarianism in Iraq. Iraqi women wouldn’t be allowed to choose the legal regime that best protects them, either. The draft law explicitly states that in the event of a dispute over which sect’s law should apply, the sect of the husband takes precedence, a provision that clearly violates Iraq’s obligations under international law to uphold equal rights for women.

In practice, this would allow two 9-year-old classmates to live very different lives at the same time. While one of them could be preparing for her test, the other might be forced to prepare for her wedding. Child marriage has been a longstanding issue in Iraq, where 28% of girls were married before they turned 18, a 2023 UNICEF study found. Early marriage has devastating consequences for a girl’s life. Girls are forced into adulthood before they are physically and mentally ready. Child brides are frequently deprived of their rights to health, education, safety and participation. They are far less likely to stay in school, with lifelong economic impacts. They are often isolated, with their freedom curtailed, and are at higher risk of physical and sexual violence. Child brides are also at greater risk of experiencing dangerous complications in pregnancy and childbirth, contracting HIV/AIDS and suffering domestic violence.

According to lawyer Mohammed Juma, one of the major opponents of this amendment, Iraq has reached the end of women’s and children’s rights. Several activists are concerned about these laws applying retroactively and affecting ongoing court cases regarding alimony and child marriages, thereby further curtailing rights. In a letter addressed to the government of Iraq dated 10 September 2024, the experts raised concern that the amendments to Iraq’s Personal Status Law no. 188 “would constitute a serious roll-back of rights in a number of key areas affecting women and children, particularly in areas such as marriage, divorce, and child custody” and would “likely exacerbate the prevalence and forms of violence against Iraqi women and girls.” National and international experts have warned that if the amendments are passed, the effects will be felt by wider society in Iraq and undermine the State’s obligation towards ensuring that women and children are given equal rights and protection before the law of the land.

Reference:

[1] Noga Efrati, Negotiating Rights in Iraq: Women and the Personal Status Law, 59 THE MIDDLE EAST JOURNAL, 577, 580 (2005).