Debate Ignighted By Proposed Amendments

The ongoing political controversy regarding proposed amendments to Iraq’s Personal Status Law (PSL) has attracted significant international attention, particularly concerning the possibility that children as young as nine years old could be legally permitted to marry should the amendments pass. Though that factor alone warrants significant scrutiny and has brought together a coalition of women legislators and their supporters from across the political spectrum, that is just one element of the possible outcomes of this amendment.

The proposed amendment will make possible a dual-track choice for Sunni and Shia families:  they will choose between the current PSL, a progressive law (for its time) that has provided Iraq women with legal and financial protections, or a religious framework with unknown regulations that will be drafted after the amendment passes by religious councils within the government. Speculation about the impact of the religious framework has driven most of the news about the PSL amendments, informed by analysts’ understanding of religious frameworks—but until the regulations are published, it is all but impossible to know just how regressive these amendments may be.

Current political discussions center on three major proposed changes:

Choosing Civil vs. Religious Marriage

The first is meant to give citizens the right to choose whether they want to get married according to the existing PSL or permit them to choose a fully religious marriage, solely adhering to the rulings of the religious sect, whether Sunni or Shia, as expressed by councils within the Sunni and Shia Endowments, respectively. If a couple chooses the religious option, then the PSL and its protections no longer apply to them, and decisions on marriage, divorce, alimony, custody, and inheritance will solely be dictated by religious rules. These will be outlined through regulations issued by councils within the Shia and Sunni Endowments (each for their sect), and the judiciary will be obligated to apply them.

The illusion of choice is present: the current amended text makes it clear that the husband's preference takes precedence in the case of a split opinion between the husband and wife, creating significant risks that women will be forced into this new framework. In cases of cross-sect marriage, which is common throughout many families, the husband's sect will apply, thus stripping the wife of both her freedom to choose and the ability to benefit from whatever protections her religious sect might provide.

Though some devout couples might indeed prefer this route, there is a significant risk for this new choice to simply further subjugate women, reinforcing patriarchal norms in a country where women are already marginalized. Indeed, the UNDP’s Gender Social Norms Index finds that nearly all Iraqis hold fundamental biases against women, particularly regarding views on whether women have the same rights, are poorer leaders in politics and business, and tolerance for partner violence. 

Retroactive Application of a Religious Framework

A second change proposed in this amendment would allow citizens to change their current marriage contract to adhere solely to the religious framework, discarding the protections of the PSL in favor of the religious framework. This change would allow for backdated amendments to marriage contracts that could shift the framework governing the marriage (and any possible divorce or inheritance) away from the PSL and under the Endowment-adjudicated frameworks. Beyond the potential administrative avalanche that this could cause for the court system, should there be a flood of requests to change, there is an extreme risk for abuse and coercion of women, given that even if they refuse the change, the law will allow their husband to make the decision unilaterally.

Obligatory Rubber Stamping

RDG believes these first two amendments have not received as much attention as the third, largely because of their complex administrative implications. However, the final amendment paves the way for child marriage. It would obligate courts to approve marriage contracts for couples who are mature by Sharia law standards, nine (for girls) and fifteen (for boys), not civil law. Currently, if a marriage contract is arranged outside of court, and one or both parties are underage, the court will not only disallow the marriage but also consider it a crime. This amendment would require that courts approve marriage contracts organized by authorized court clerks or religious leaders without question.

The Role of the Endowments & Shifting Power

The law amendment authorizes the Shia and Sunni Endowments to draft religious regulations in coordination with the Higher Judiciary Council (HJC). Issued as annexes to the revised law within six months of the amendments’ passing, these annexes are more akin to regulations; they will promulgate the religious rules for marriage, divorce, alimony, custody, and other related issues for the Sunni and Shia sects, respectively.

Should judges have questions about how to rule for families who elect to follow the religious path, they will be obligated to return to the councils for guidance (and possibly to the Marjaiya in Najaf for Shia families), drastically undercutting their autonomy.

Potential Implications for Families Using the Religious Framework

Without the annexes being drafted, the MPs advocating for the passage of these amendments are essentially asking fellow parliamentarians and constituents to trust that they will favor the regulations issued by the Shia and Sunni Endowments. Some more likely regulations based on past religious rulings and the various schools of thought dominant within the Endowments have been forecast, but the actual regulations have yet to be developed.

Child Custody

Should the amendment pass, the religious frameworks governing custody arrangements are expected to favor fathers strongly. The legal annexes produced by the Endowment councils are expected to allow mothers custody only for two years after birth (based on an assumed breastfeeding timeline); fathers would then take custody permanently. Presently, the PSL favors mothers, giving mothers the right to custody until children reach a certain age, at which point they are allowed to choose which parent to live with. The current law allows fathers to take custody only in the most dire situations where it can be proven that the mother is unfit.

Temporary and Child Marriage

Religious strictures under both the Ja’afari and Hanafi schools allow for “temporary marriages” under several specific conditions, but this concept is not allowed under the current PSL. Temporary marriages are often used to provide a veneer of acceptability for prostitution and can easily be used to subjugate women. Should the amendment pass, the religious frameworks are expected to obligate courts to recognize and legalize temporary marriages, including those between young people, as the acceptable age of marriage will revert to religious standards, nine (for girls) and fifteen (for boys), not current legal standards.

A Progressive Legacy

The creation of the PSL, also known as Law 188, in 1959 was a pluralistic, inclusive approach to legislative development that brought together legal experts from the Sunni and Shia religious schools. Together, they chose to adopt a legal framework that combined simplicity, flexibility, and adaptive standards that met both religious requirements and international standards of the day.

According to Law 188, in the event of marriage, divorce, and inheritance, the court checks with both parties to understand whether they observe the Ja’afari or Hanafi-based framework. This distinction has implications beyond religious observance, with meaningful financial differences dependent on the preferred framework. While the law considered different religious traditions, it also established a baseline civic framework applicable to all, irrespective of religious identity.

Despite its gaps, Iraq’s PSL was considered advanced for the time and remains one of the most equitable throughout the Middle East. In addition to its regional comparative advantage, the law has remained stable over the decades. Courts, judges, lawyers, and ordinary citizens understand the law well and are familiar with the rulings it is likely to produce. In contrast to many recently passed laws, the language is clear. It outlines rights, responsibilities, and consequences based on a citizen’s chosen religious sect, with a baseline of civil rights afforded to those privately less religiously observant.