Amendment to Personal Status Law: A Blow to Iraqi Women & Society

The proposed amendment does not only harm women and children: it harms society as a whole and is an indicator of willful regression to pre-state conditions.

Since late July, the Iraqi public has been embroiled in a battle over a proposed ‘amendment’ to Iraq’s long-standing personal status law. If enacted, this amendment will harm women, children, and families, weaken social cohesion, and undermine the authority of the state.  

The history of the Iraqi personal status law 

In 1959, Iraq adopted Personal Status Law 188. The new law provided a single code governing Muslim family affairs (non-Muslims were allowed to follow their laws).  

Law 188 was drafted by jurists and constitutional experts and reviewed by religious scholars. Because there is no single, universal Shari’a law in Islam, the drafters selected what was most suited for contemporary Iraqi society and would secure women and children greater rights and protections within the family, drawing on the Shari’a schools of four Sunni sects and Twelver Shi’ism. The law eliminated arbitrariness in family status, unified the country under one governing code, and applied the same and equal rules to all Muslim families. 

To ensure the consistency of jurisdiction over family affairs, all marriages had to be contracted before a judge within the state court system, and marriage outside the courts was criminalized. The age of consent was set to 18; polygamy, though not banned, was strictly conditioned, and articles addressing child custody, inheritance, and alimony ensured the welfare of children and women. Several amendments to the law over the years provided further protections and greater equity in family affairs. 

In the summer of 2004, shortly after the collapse of the Ba’ath regime and before the ratification of a permanent constitution in 2005, some Shi’a clerics called for the repeal of Law 188 and a return to religious Shari’a laws.  

At the time, Iraqi women campaigned against this retrogressive move that was not only harmful to their welfare but also to society at large. Intensive lobbying by Iraqi women and male supporters, including lawyers, judges, academics, writers, and other opinion leaders, was only partially successful. In the 2005 constitution, hardline clerics managed to insert a landmine article.   

Article 41 of the constitution states: “Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law.” In subsequent years, Article 41 would be invoked repeatedly to nullify Law 188 and replace it with the diverse Shari’a laws of the four Sunni and the Twelver Shi’a sects. On several occasions, the issue was raised in parliament. Each time, women’s groups, male supporters, and activists mobilized a counter-campaign. Each time, parliament dropped the proposal as too divisive and unlikely to win a parliamentary majority.  

Attempts to revoke Law 188 

However, the current parliament, elected in October 2021, is dominated by hardline Shi’a MPs representing powerful Shi’a parties and militia groups. In July, conservative Shi’a MPs claimed that Law 188 conflicted with their religious beliefs and the freedom granted by the constitution, again citing Article 41. They introduced what they called an ‘amendment’ which, if passed, would eviscerate Law 188 and replace it with the multiple, uncodified Shari’a rulings.  

With this amendment, the role of the courts as regulators and overseers of family welfare would be nullified. Under all branches of Shari’a law clerics can officiate marriages and divorces without registering them with the courts. Thus, instead of the consistency, predictability, and universality of Law 188, clerics can take control of family welfare. Spouses, especially women, will be subject to the vagaries of interpretation by individual clerics. As a result, protections and rights currently accorded to women will be precarious and severely eroded.  

As an example, Law 188 prohibits polygamy except under explicit, limited conditions, including the consent of the first wife and a judge. Under Shari’a laws, the consent of the first wife is not required. Indeed, a man need not disclose serial marriages, thereby creating havoc in kindship networks and inheritance distribution.  

The Shi’a sect also allows what is called ‘pleasure marriage’ (mut’a), a form of temporary marriage that can theoretically range from one hour to multiple years, making it a sanctioned form of prostitution. These are officiated over by clerics and are not legally registered. Under mut’a, the woman receives a dowry but has far fewer rights than in a formal marriage. Mut’a marriages are not recognized in Law 188, yet they have proliferated since 2003, as men have exploited women impoverished by wars, internal conflicts, and displacement and desperate for funds.  

Lastly, under Law 188, requests for separation and divorce must be presented in court and according to defined conditions and procedures. Divorce under Shari’a has no consistent and uniform rules. The rights of divorced women are uniformly less equitable than under the national law and vary among the sects.  

Children will also lose protection if Shari’a laws are applied. Child custody has been a flashpoint for several years. Law 188 gives mothers custody over children until the age of 10, with a possible extension to 15, even if a mother remarries. In some sects, Shari’a law gives custody to the father when a child is as young as two and always immediately if a mother remarries.  

The most notorious of abuses is the change in the age of marriage. Whereas the current law sets 18 as the minimum age for marriage (15 in exceptional cases), Shari’a in Sunni and Shi’a sects sets eligibility for marriage at puberty. Senior clerics have stated that puberty for girls starts at nine years. This particular risk has caused a national outcry, amid fears that young girls will be sold for large dowries by families in poorer communities, to settle family disputes, or to curry favor with community leaders.  

The multiplicity of Shari’a laws, with varying, uncodified, and sometimes egregious interpretations of clerics within and across sects, means that women and children will be subject to unequal and arbitrary rulings across the sectarian spectrum and exposed to abuse without the ability of the state to provide protection.  

Harm to all of Iraqi society 

Women’s rights groups, male and female activists, academics legal scholars, and political leaders have mobilizedagainst the attempt to hollow out Law 188 and revert to Shari’a laws. They have held demonstrations and put out statements and petitions. An informal electronic poll of nearly 62,000 Iraqis showed that 73.2% of respondents strongly opposed the amendment. 

The proposed amendment does not only harm women and children: it harms society as a whole and is an indicator of willful regression to pre-state conditions. The amendment does not have a national consensus, nor has it been presented for national debate.  A reversion to Shari’a law will compromise the constitution, which enshrines the equality of citizens, and undermine the supremacy of the state and the judiciary in upholding the laws of the nation. It will entrench sectarianism and further fragment Iraqi society at a time when social cohesion and integration are most needed.   

At a deeper level, it is symptomatic of an ongoing, politically-driven effort by Shi’a extremists to raise sectarian identity at the expense of national identity and impose the will and ideology of hardline Shi’a groups on the whole of Iraqi society.  

The views represented in this piece are those of the author and do not express the official position of the Wilson Center.