Iraq, Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

 

Legal system draws on Islamic law, constitutional law, legislation and statutory provisions, usage and custom, judicial precedent, and jurist’s opinions.

Iraq came under Ottoman rule during 17th century, but OLFR 1917 was never implemented as the Turks lost control over Iraq by end of World War I when British Mandate rule was established. Full independence in 1932. Military coup in 1958 brought an end to monarchy and Iraq became a republic.

Article 2 of Iraqi Law of Personal Status 1959 states that ILPS applies to all Iraqis except those specifically exempted by law, mainly Jewish and Christian religious minorities. Residuary source of law in absence of specific provisions of ILPS is "principles of the Islamic shari’a in closest keeping with the text of the ILPS". Article 1 of Civil Code also identifies Islamic law as a formal source of law.

School(s) of Fiqh

Majority of Iraqis are Ja’fari or Hanafi; also Christian and small Jewish and Yezidi minorities

Constitutional Status of Islam(ic Law)

Provisional constitution adopted 22nd September 1968; came into effect from 16th July 1970. Article 4 declares Islam state religion. (New constitution drafted in 1990 but not adopted.)

Court System

 

Courts of Personal Status hear all cases involving Muslims (whether Iraqi or not). Have jurisdiction over marriage, divorce, legitimacy, succession, awqaf, etc. Shari’a courts operate independently from regular courts.

Relevant Legislation

 

Code of Personal Status 1959 (Law No. 188/1959; most significant amendments made by Laws No. 11/1963 adding Chapter 9 on Inheritance, and No. 21/1978 relating to Women’s Rights in Marriage and Divorce)

also:

Civil Code 1951 (drafted by ‘Abd al-Razzaq al-Sanhuri)

Law No. 35/1977 outlining Arab Ba’ath Socialist Party’s guidelines and goals for law reform

Law No. 78/1980 on Minors’ Welfare

Law No. 125/1981 on Husband’s Sodomy as Ground for Divorce

Law No. 77/1983 on Divorced Wife’s Right to Residence

Law No. 5/1986 on Drinking Alcohol as Ground for Divorce

Law No. 106/1987 on Mothers’ Custody Rights

Notable Features

 

Marriage Age: minimum age is 18 for men and women; judicial permission may be granted at 15 years if fitness, physical capacity and guardian’s consent (or unreasonable objection on part of guardian) are established

Marriage Guardianship: no relative or third party has power of compulsion; marriage contract concluded by coercion is void if not consummated; likewise, no relative or third party may prevent person having legal capacity from marrying; ILPS provides penalties of fines and/or imprisonment for non-compliance

Marriage Registration: obligatory court registration

Polygamy: only permitted by judicial permission, to be granted on two conditions: financial ability and lawful benefit; permission not to be granted if judge fears unequal treatment of co-wives; ILPS provides penalties of imprisonment and/or fines for non-compliance

Obedience/Maintenance: husband obliged to maintain wife (in accordance with circumstances of both spouses) subject to classical conditions

Talaq: talaq must be confirmed by Shari’a Court’s judgement or registered with Court during ‘idda period; talaq by man who is intoxicated, insane, feeble-minded, under coercion, enraged (madhush), or seriously ill or in death sickness ineffective, as is talaq that is not immediate or is conditional or in form of an oath; all talaqs deemed single revocable (except third of three); wife may obtain khul’ from husband in return for consideration that may be more or less than her dower

Judicial Divorce: wife entitled to request dissolution if husband does not fulfil any lawful condition stipulated in marriage contract;

either party may request dissolution upon following grounds: such harm as makes continuation of marriage impossible; marital infidelity; if marriage was contracted without judicial permission before either party attained 18 years; if marriage was concluded outside court by coercion and was not consummated; if husband marries polygamously without judicial permission; and if any of above grounds are not proven, on grounds of discord (in which case courts initiate reconciliation procedures; if reconciliation efforts fail and husband refuses to pronounce talaq, courts may grant judicial divorce; if wife is found to be at fault, her financial rights are forfeit).  Wife may request judicial divorce upon following grounds: if husband is imprisoned for three or more years; if husband abandons wife for two or more years without lawful reason; if husband does not consummate marriage within two years of contract; husband’s impotence or affliction (if after consummation, must be confirmed by medical report); husband’s infertility if wife has no living son by him; husband’s serious illness which would cause wife harm; non-maintenance after grace period of up to 60 days; non-maintenance due to husband’s absence, disappearance, concealing his whereabouts, or imprisonment for more than one year; and if husband refuses to pay maintenance arrears after 60-day grace period; wife may also request judicial separation before consummation in return for any dower and proven expenditure on husband’s part for purpose of the marriage

Post-Divorce Maintenance/Financial Arrangements: husband obliged to maintain divorcée (even if nashiza) during ‘idda; 1983 legislation provides that repudiated wife has right to continue residing in marital home without husband for three years, so long as she was not disobedient, did not agree to or request divorce, and does not own house or flat of her own

Child Custody and Guardianship: divorcée entitled to custody of boys or girls until age of 10 years, extendible to 15 years at which time ward may choose with which parent s/he wishes to live

Succession: introduction of obligatory bequest to grandchildren by predeceased sons or daughters as well as complete freedom of testator to make will within limits of bequeathable one-third of estate; 1963 legislation allowed female descendants of deceased to completely exclude collateral male agnates; 1963 amendments also adopt Shi’i system of classifying heirs for inheritance, though Sunni principles still govern division of estates among heirs

Notable Cases

 

Law/Case Reporting System

Law reporting through Iraqi Official Journal, al-Waqa’i al-‘Iraqiyya

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – signature 1969, ratification 1971 with number of general declarations

CEDAW – accession 1986 with reservations to Arts. 2(f) & (g), 9(1) & (2), 16, & 29(1); reservation to Art. 16 related to contradictions with provisions of Islamic shari’a according ‘equivalent’ rights to wives and husbands

CRC – accession 1994 with reservation to Art. 14(1) relating to children’s freedom of religion being a right contrary to the shari’a

Legal History:

Iraq has a mixed legal system that draws on both Sunni and Shi’i fiqh for the law applied in shari’a courts. The legal system as a whole also includes constitutional law, legislation and statutory provisions, usage and custom, judicial precedent, and authoritative juridical opinions.  Iraq, the birthplace of the Hanafi school of fiqh, came under Ottoman rule in the 17th century. From 1850 a number of new civil, penal and commercial codes were adopted by the Ottomans, based on European (mainly French) models, but the OLFR 1917 was never implemented in Iraq as the Turks lost control over the region by the end of World War I when a British Mandate was established. The British administrators did not adopt the OLFR as it was not part of local law and because of the fact that Iraq had an almost equal proportion of Sunni and Shi’i inhabitants. A monarchy was established under King Faisal in 1921 following the Arab Revolt; Iraq gained full independence from its Mandate status in 1932. A military coup in 1958 brought an end to the monarchy and Iraq became a republic. 

The Iraqi Law of Personal Status 1959 was based on the report of a commission appointed the previous year to draft a code of personal status and applies, according to Article 2, to all Iraqis except those specifically exempted by law, mainly relating to Christian and Jewish minorities. The ILPS provides that, in the absence of any textual provision, judgements should be passed on the basis of the principles of the Islamic shari’a in closest keeping with the text of the ILPS. Article 1 of the Civil Code also identifies Islamic law as a formal source of law.

Schools of Fiqh: The Ja’fari and Hanafi are the predominant schools in Iraq. There are also Christian and small Jewish and Yezidi minorities.

Constitutional Status of Islam(ic Law): The provisional constitution was adopted on 22nd September 1968 and came into effect from 16th July 1970. Article 4 of the current provisional constitution declares Islam the state religion. (A new constitution was drafted in 1990 but was not adopted.)

Court System: Courts of Personal Status hear all cases involving Muslims, whether Iraqi or not. These Courts have jurisdiction over marriage, divorce, legitimacy, succession, awqaf, etc. Shari’a courts operate independently from the regular courts. The Code of Personal Status 1959 is a unified code applicable to Shi’a and Sunni Iraqis. 

Notable Features:  The minimum marriage age is 18 for men and women; judicial permission for under-age marriages may be granted at 15 years if fitness, physical capacity and guardian’s consent (unless the guardian’s objection is considered unreasonable) are established. No relative or third party has the power of compulsion; a marriage contract concluded by coercion is void if it has not been consummated. Likewise, no relative or third party may prevent a person having legal capacity from marrying. Court registration without charge is obligatory and requires documentation of age, identity, stipulation of the amount of dower, medical reports, etc.; unregistered marriages may be proven by the affirmation of both parties.

Polygamy is only permitted by judicial permission, obtainable on two conditions; the husband must show some lawful benefit and financial ability to support more than one wife. Permission is not to be granted if the judge fears unequal treatment of co-wives. The ILPS provides penalties of imprisonment and/or fines for non-compliance with its provisions relating to marriage guardianship, registration and polygamy.

Upon marriage, the husband is obliged to maintain his wife (in accordance with the circumstances of both spouses) subject to classical conditions. Maintenance for a wife who is not nashiza is deemed to be a debt from the time that the husband ceases to pay maintenance; the wife is not entitled to maintenance if she leaves the marital home without her husband’s permission or lawful cause, or if she is imprisoned or refuses to travel with her husband without lawful cause. The wife’s right to work is not expressly mentioned, although the implication is that she would require her husband’s permission to do so.

Talaq must be confirmed by the Shari’a Court’s judgement or registered with the Court during the ‘idda period. Talaq by a man who is intoxicated, insane, feeble-minded, under coercion, enraged (madhush), or seriously ill or in death sickness is ineffective, as is talaq that is not immediate or is conditional or in the form of an oath. All talaqs are deemed single and revocable except the third of three.

The wife is entitled to request a dissolution if the husband does not fulfil any lawful condition stipulated in the marriage contract. Either party may request dissolution upon the following grounds: such harm as makes continuation of marriage impossible; marital infidelity; if the marriage was contracted without judicial permission before either party attained 18 years; if the marriage was concluded outside of court by means of coercion and was not consummated; if the husband marries polygamously without judicial permission; and if any of the above grounds are not proven, then on grounds of discord (in which case the court must initiate reconciliation procedures; if reconciliation efforts fail and the husband refuses to pronounce talaq, courts may grant judicial divorce; if the wife is found to be at fault, her financial rights are then forfeit). The wife may request a judicial divorce upon following grounds: if the husband is imprisoned for three years; if her husband abandons her for two years without lawful reason; if her husband does not consummate the marriage within two years of the contract; husband’s impotence or affliction (if this occurs after consummation, it must be confirmed by medical report); husband’s infertility if the wife has no living son by him; husband’s serious illness which would cause the wife harm; non-maintenance after a grace period of up to 60 days; husband’s failure to maintain due to his absence, disappearance, concealing his whereabouts, or imprisonment for more than one year; and if the husband refuses to pay maintenance arrears after a 60-day grace period.

The wife may also request judicial separation before consummation in return for any dower and proven expenditure on the part of the husband for the purposes of the marriage. All judicial divorces are considered lesser irrevocable. The wife may also obtain a khul’ from her husband in return for consideration that may be more or less than her dower. The option of puberty is not specifically regulated, but is mentioned in the provision defining the waiting period. The former husband is obliged to maintain the divorced wife (even if she was deemed nashiza) during her ‘idda period. According to legislation passed in 1983, the repudiated wife also has a right to live in the marital home without her former husband for three years provided that she was not disobedient, did not request or agree to the divorce, and does not own her own house or flat. The divorcée is entitled to custody of boys or girls until the age of 10, extendible to 15 years if it appears to be in the minor’s best interests. Upon attaining 15 years, the ward may choose which parent to live with, or choose any other relative if such choice appears reasonable to the court.

The original 1959 legislation on succession was based on Ottoman law regulating the inheritance to the right to miri (government) property. The Ottoman law, in turn based mainly on German law, equalised male and female inheritance rights. The 1959 legislation also introduced obligatory bequests to grandchildren by predeceased sons or daughters, as well as complete freedom of the testator to make a will within the limits of the bequeathable one-third of the estate. Amendments made in 1963 allowed female descendants of the deceased to completely exclude collateral male agnates. As well, the provisions relating to intestate succession were amended in 1963, repealing the Ottoman-inspired reforms and adopting the Shi’i system of classifying heirs; within the Shi’i system of classification, Sunni principles are applied to the division of estates amongst the heirs.

Law/Case Reporting System: Law reporting is through the Iraqi Official Journal, al-Waqa’i al-‘Iraqiyya.

International Conventions (with Relevant Reservations): Iraq signed the ICCPR and the ICESCR in 1969 and ratified both Conventions in 1971. The general declarations submitted by Iraq related to its entry not signifying recognition of the state of Israel, and to its entry not constituting entry to the Optional Protocol to the ICCPR.

Iraq acceded to the CEDAW in 1986, with a reservation relating to Iraq not considering itself bound by Article 2(f) and (g), Article 9(1) and (2), and Article 16. The reservation to Article 16 states concerns the provisions of the Islamic shari’a according women rights equivalent to the rights of their husbands thereby ensuring a just balance between spouses.

Iraq acceded to the CRC in 1994 with a reservation to Article 14(1) relating to the child’s freedom of religion, stating that "allowing a child to change his or her religion runs counter to the provisions of the Islamic shari’a".

Background and Sources:  Amin, Middle East Legal Systems, Glasgow, 1985; El Alami & Hinchcliffe, Islamic Marriage and Divorce laws of the Arab World, London, 1996; Anderson, Law Reform in the Muslim World, London, 1976; Iraq, Official Gazette (English Edition), no. 11 (16.3.1983), pp. 4-5; Mahmood, ‘Iraq’ in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Mallat, "Shi’ism and Sunnism in Iraq: Revisiting the Codes," in Islamic Family Law, Mallat & Connors, eds. London, 1990; al-Mukhtar, "Iraq," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1995): 157-177; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Pearl, A Textbook on Muslim Personal Law, 2nd ed., London, 1987; Redden, ‘Iraq’ in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990.