TAMANI AL-SARWI

Baghdad_Today, Thursday, August 27, 2026, marks the anniversary of the Iraqi Parliament's approval of the Ja'fari Personal Status Code, introduced as an amendment to the Personal Status Law No. 188 of 1959. The amendment allows Iraqi followers of the Ja'fari school of thought to choose the application of the Code's provisions to marriage contracts.

In this context, lawyer and member of the "Alliance 188 for the Defense of the Personal Status Law," Marwa Abdul Redha, spoke about her main observations and criticisms regarding the amendment and the Ja'fari Code, and the problems she sees emerging in its application.

Personal Status Law: Guarantees for the Family

Marwa Abdul Redha stated that the Personal Status Law No. 188 of 1959 was one of the most prominent personal status laws in the region, providing guarantees in matters of marriage, divorce, custody, and family members' rights.

She added that the amendment of the law and the adoption of the Ja'fari Personal Status Code have raised, from her perspective, a number of problems related to the rights of wives and children and the mechanisms for implementing the Code's provisions.

She explained that one of the most prominent problems lies in the right to choose the application of the Code's provisions, considering that the decision has practically become in the hands of the husband, even though the marriage contract is based on two parties, and the effect of this decision extends to the wife and children as well.

She pointed to differences in the mechanism of notifying the wife about the decision to transfer to the Code's provisions across courts, considering that this may lead to the husband moving to the Code's provisions without the wife having an actual role in the decision.

Early Marriage: Concerns Over the Marriage Age

According to Marwa Abdul Redha, the issue of early marriage is one of the most concerning files. She believes that the failure to establish a clear marriage age within the Code's provisions may open the door to marriages at young ages.

She explained that the previous Personal Status Law set the marriage age at 18, with exceptions allowing marriage at age 15 under specific conditions, while the Ja'fari Code set the marriage age at puberty. She warned that this, along with weak controls on marriage outside court, may expand the scope of violations and allow the marriage of minors at early ages.

She believes that requiring the girl's consent does not resolve the issue, especially at young ages, as the question remains as to whether the consent is free and genuine, rather than resulting from family pressure.

She said that the Code, according to her reading, does not establish a clear mechanism obliging the religious official to directly verify the girl's consent, which may make consent formal in some cases.

Custody: The Child's Best Interest First

On the issue of custody, she said the fundamental problem lies in linking the mother's continued custody to her not remarrying, so that custody transfers to the father if she remarries.

She affirmed that the criterion governing custody should be the child's best interest, not the mother's marital status, explaining that this does not mean granting custody to the mother in all cases, as the child's best interest may lie with the father as well.

She added that the previous Personal Status Law allowed the judiciary to transfer custody from the mother to the father when the child's best interest required it.

Marwa Abdul Redha emphasized the need to activate the role of the social researcher and psychological evaluations in custody cases, considering that procedures should go beyond formalities to a genuine assessment of the child's situation and their relationship with both parents.

She called for the formation of specialized committees capable of conducting comprehensive social and psychological evaluations, so that custody decisions are based on the child's actual best interest.

Retroactive Effect and Judicial Disparity

Marwa Abdul Redha warned that applying the new provisions to previous situations or contracts may lead to legal complications, in addition to judicial disparity between courts depending on differences in judges and jurisprudential references.

She believes that this disparity may lead to women in similar cases receiving different rulings depending on the court handling the case.

She linked the Code's repercussions to the issue of domestic violence, warning that narrowing the legal tools available to women to end a marital relationship may leave some women in violent relationships.

She said that changes regarding separation raise questions about the role of the Islamic judge and the authority that will assess harm and violence and decide whether to continue or terminate the marital relationship.

She noted that criticisms are not limited to custody and separation, but also include financial and legal rights such as alimony and compensation for arbitrary divorce, explaining that some of these guarantees have been reduced or abolished, while certain judicial interpretations may limit women's ability to benefit from the rights contained in the Code's texts.

One year after the adoption of the Ja'fari Code, lawyer Marwa Abdul Redha believes the debate is not over, but has moved to a phase of evaluating the effects of implementation on the Iraqi family.

According to her, the most prominent questions center on protecting women's and children's rights, the best interest of the child, guarantees for marriage—particularly early marriage—and women's ability to end marital relationships in cases of violence and harm.

She concludes that the fundamental challenge lies in determining whether the amendment has genuinely strengthened family protection, or whether it has created new problems requiring legislative attention.