Iraq considers drastic changes to family law

On August 4, 2024, the Iraqi parliament held the first reading of a bill amending Iraq’s personal status law (PSL), which has been in place since 1959. If passed, these amendments may reinforce sectarian identity and undermine women’s rights. The proposed amendments would give Muslim citizens the option of selecting either the current, largely secular personal status law, or a religious law—depending on their sect—as the basis of all family law matters upon their marriage.

This is the conservative Islamist parties’ third attempt to transform Iraq’s personal status law to a religiously based law since 2014. Unlike the previous two attempts, however, this attempt has garnered broader political support and may succeed, despite the outcry from Iraqi civil society organizations.

Problems with the proposed changes

The Shia and Sunni codes would be set within six months of the law’s passing by scholarly councils in the Shia and Sunni Religious Endowment offices, government agencies tasked with maintaining the country’s religious heritage.

Herein lies the problem: Islam does not have a unified and universally agreed upon family law, even within each sect. The nature of Islamic jurisprudence is that it is open to scholarly interpretation. A codification of a supposedly Islamic law is a codification of one interpretation.

In the Shia case, the bill assigns the ultimate authority to the highest Shia cleric, from the Najaf seminary, who has the largest following in Iraq. Today that figure is undoubtedly Grand Ayatollah Ali al-Sistani. However, in the future, this position may be contested by many clerics, including those residing outside of Iraq, complicating the situation.

In the Sunni case, disagreement will be taken to the Scholarly and Jurisprudential Council of the Sunni Endowment Office. This is perhaps a way to institutionalize Sunni religious authority in the country, which has often been much less organized than its Shia counterpart. Iraq’s non-Muslim communities will be left with the current PSL, or may campaign to create their own, which was the case in the late monarchical period. In other words, Iraq will have an extremely malleable and complicated PSL.

The law’s religious basis risks institutionalizing elements antithetical to human rights. The most feared repercussion of this law is the legalization of child marriage. Currently, the legal age of marriage is set at 18, but girls as young as 15 can be married with a judge and parental consent. Because some clerics set the age of puberty to nine, there are concerns that this would pave the way for legalizing and expanding child marriage in Iraq, which is already occurring. Muslims in Iraq get married through two ceremonies: one with a cleric and one with a judge. The first ceremony provides social cover for the marriage but is not currently recognized by the courts. In addition, certain religious interpretations may privilege men in issues of inheritance and of child custody. In the current law, women retain custody until the age of 10 while many Shia clerics only give them custody until the age of two, also negating the need for providing child support. And, in any dispute between a couple over the law governing their marriage, the husband’s sect identity takes precedence legally.

How the Shia religious establishment sees the law

The Shia religious establishment, which would assume huge responsibility if this law passes, has been quiet about the proposed changes. It is an informal albeit hierarchical and influential institution which controls one of the largest seminaries of Shia learning, exercises spiritual authority over millions of adherents within and outside of Iraq, and is well-resourced through religious taxes and other streams of revenue. It is currently led by Sistani, who has long championed democratic processes and unity in Iraq. Sistani, however, turned 94 on the day that Iraq’s parliament held its first reading of this law. Within and outside Iraq, everyone from Shia adherents to policymakers and activists is concerned about the power vacuum that his death will leave. Najaf’s succession processes are opaque, and history has shown that instability is likely as the mantle passes from one elite cleric to the next. If the PSL stipulates final authority to the head of the Shia religious establishment, this spells a period of instability for the law as well.

Elite clerics in Najaf consider this proposal to be a political ploy to ensnare them in a publicly unpopular move. Yet, the clerical establishment has historically opposed the 1959 law for its differing rulings. Since the 2019 nationwide protests, which Sistani supported, he has stopped meeting with Iraqi politicians and has refused to lend Shia Islamist parties the support and legitimacy that characterized the early post-invasion years, ostensibly due to the stain on the clerics’ reputations that came as a result of association with badly performing parties. Therefore, this latest attempt by conservative Islamist parties seeks to not only mold the state to their vision but to also show voters that they are still close to the religious establishment.

The clerics in Najaf cannot reject the law on a religious basis without contradicting their own religious beliefs and rulings. According to some clerics in Najaf, they had trouble in the past navigating between court rulings concerning divorce and custody and their own rulings on the matter. The Shia religious establishment has been historically wary of the state and some may not necessarily welcome a larger role in public life, including an expanded logistical role that may divert their attention away from their seminary.

They may also not welcome the creeping institutionalization of their religious hierarchy by having a state-recognized “cleric with the largest following” that can, in the future, contradict their own selection of the highest-ranking cleric. Sistani plans to meet with other leading clerics in the upcoming week, while the rest of the religious establishment hopes to reach out to civil society organizations following the pilgrimage of Arbaeen. They believe the law’s passing is inevitable, given its parliamentary support, and are considering intervening to address key concerns including child marriage. Critically, however, they will only intervene through intermediaries, which also contributes to the confusion and abdication of responsibility.

What makes matters confusing is that Ammar al-Hakim, the current head of the National Wisdom Movement, and scion of a well-known clerical family, supports this law. Hakim is not a high-ranking cleric, but he draws on the authority of the Shia religious establishment’s leaders from the Hakim family, such as the late Grand Ayatollah Muhsin al-Hakim (who opposed the 1959 law, which was passed during his time as the head of the religious establishment) and Grand Ayatollah Muhammad Saeed al-Hakim (who was expected to succeed Sistani before passing away in 2021).

In reality, there is a schism between the Hakim family’s clerical and political branches. Ammar al-Hakim faced heat as a result of his early support for this law and hastened to clarify that it should be made compatible with modern life. Notably, Hakim’s former party proposed changing the law in 2017. Before that, another Islamist party, al-Fadila, proposed it in 2014.

Hakim’s National State Forces Alliance was the first to endorse the latest effort to pass the law, which was proposed by an independent member of parliament (MP). Other Shia Islamist parties quickly joined the campaign. Prior attempts took place closer to elections to motivate these parties’ conservative electoral base. The next federal election is set, at the latest, for October 2025. The Shia Islamist parties, who are trying to appeal to their conservative base, face an increasingly apathetic electorate with only about 43% turnout in the last federal elections. Moreover, Sunni politicians have also come on board, though experts believe that this is in exchange for Shia political support for the amnesty law which would release thousands of Sunnis arrested under the Anti-Terrorism Law.

Iraq will become more sectarian

The law also risks enshrining sectarianism. After years of sectarian violence—including the civil war of 2005-2008 and the war against the Islamic State group from 2014-2017—Iraqi society is moving on. This law creates a legal basis for division. Currently, Iraq’s sectarianism has appeared only informally in its institutions’ power-sharing structures. Although sect-based consociationalism norms are sticky in Iraq, they don’t have legal manifestations. Other than the existence of religious endowment offices representing different religious groups, this would be the first major legal distinction between Iraqis of different sects. It could pave the way to further legal disunity and may be unconstitutional, since the Iraqi constitution prohibits discrimination by sect.

Iraqi women have more rights than many of their regional counterparts, but they must constantly battle to preserve them. In response to the proposed bill, activists, politicians, and lawyers formed Coalition 188 (named after the original PSL) and demonstrated throughout Iraq. Female legislators and policymakers including Nour Nafea, who emerged from the 2019 protest movement—and veteran politician Ala Talabani—have worked tirelessly to protest the law. Female legislators met with Ammar Al-Hakim, who asserted the right of a parliamentary majority to enact laws.

For the next few weeks, Iraqi activists and oppositional MPs will continue to put pressure on parliament and on individual politicians who have supported this law. But the war on this law should not only be fought in Baghdad but also Najaf, by convincing the powerful Shia clerics to delegitimize this law and strip it of its claims to religious authority. This will not be easy, but it could save generations of Iraqis from a troubling fate.