Shafaq News
Consider twoIraqi children, both aged seven, both living with their mothers after adivorce. Under the civil law that has governed Iraqi families since 1959, thefirst stays with his mother until he is fifteen, when he may choose for himselfbefore a judge. Under the Jaafari Personal Status Code, approved by parliamentlast August, the second passes to his father now, automatically, with norequirement that anyone demonstrate his mother has failed him. The two childrenhold the same citizenship. The difference between them is which legal tracktheir parents entered, and in a growing number of cases, which track one parententered without telling the other.
Iraq did notrepeal its civil family law. Personal Status Law No. 188 of 1959 remains inforce. What changed is that an amendment passed in February 2025 allowedcouples registering a marriage to choose whether their marriage, divorce,custody, and inheritance would be governed by that law or by the jurisprudenceof the Jaafari school, the legal tradition of Twelver Shiite Islam, known alsoas Imami jurisprudence after the twelve Imams whose rulings supply itsauthority. Shiite religious authorities then drafted the Code, more than 300articles, to give the choice content. Parliament approved it on August 27,2025. The 1959 law survives, but without governing all Iraqis.
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Human RightsWatch called for immediate repeal on October 15, describing the amendment asunlawful and unconstitutional. Sarah Sanbar, the organization's Iraqresearcher, said the Code "further institutionalizes discriminationagainst women, legally relegating them to second-class citizens."
The provisionsthe organization singled out concern control as much as content. A husband mayconvert the marriage contract to Jaafari governance without his wife's consentor knowledge. He may divorce her without informing her. Care of children passesto the father once they turn seven, whatever a court might otherwise concludeabout their interests. A wife may write a clause into her contract barringpolygamy or unilateral divorce, but should her husband disregard it, the secondmarriage or the divorce stands regardless.
Retroactivityis where those provisions have begun reaching into settled lives. Human RightsWatch documented the case of a woman it identified as Ghazal H., who divorced aviolent husband in 2015 under the 1959 law, after a court had convicted him ofassault. On September 11, 2025, she received a summons. Her former husband hadfiled to apply the Jaafari Code retroactively to their decade-old marriagecontract and to terminate her guardianship of their ten-year-old son. She hadnot been consulted or informed. "It is unacceptable that someone marriesunder a law that protects the rights of women and children, and then, more thana decade later, manipulates the law to strip those rights away," she said.
That is thegrievance Iraqi women's organizations have taken to the street. In Baghdad,dozens of women demanded that the amendments not be applied backward tomarriage contracts concluded before they took effect, and that the custodyprovisions and the implementing decision governing them be reopened. Theirplacards called for the interest of the child to be the operative standard incustody rulings.
Lena Ali, anIraqi broadcaster and civil activist known for her advocacy on women's andchildren's issues, told Shafaq News that the Code has not produced what waspromised on its behalf. It "did not achieve its declared goal of reducingdivorce rates or improving the condition of the family," she said, and hasinstead brought "an increase in domestic violence and greater complicationin disputes between spouses after divorce." On custody, she was unsparing."Removing children from their mothers in this way crushes the naturalrelationship between a mother and her child, and leaves deep psychologicaleffects on children," she said, calling the Code "unjust" andarguing that it "does not represent religious law fairly." Some ofits provisions, she added, "are being used to pressure women and influencethem in divorce and custody cases."
The case for theamendment is not made only by clerics, and its strongest version turns Ali'sargument on its head. Mohammed Jassim al-Khafaji, a member of the parliamentarylegal committee, has argued publicly that Article 57 of the 1959 law, theprovision granting mothers custody to fifteen, had itself become an instrumentof coercion. The article makes custody a near-absolute maternal right, hewrote, and applies not only after divorce but during a subsisting marriage, sothat an ordinary marital quarrel can be escalated by a mother, assisted bythose who make a living from such disputes, into a case where the child becomesa weapon against the father, and the dispute is driven toward separation. Afather who tries to keep his own children, he wrote, may find himself facing anabduction complaint.
Al-Khafaji'saccount is contested, and his language is combative. It is also the argumentthe Code's supporters actually make, and it identifies something the Code'scritics tend to pass over: the civil law's custody regime was not neutraleither, and the campaign to displace it drew energy from fathers whoexperienced it as an instrument used against them.
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Sheikh MohammedKhalil al-Sinjari, a representative of the Shiite religious authority inBaghdad, put the doctrinal case to Shafaq News in gentler terms. "Themother has the greater right to custody in the early years, but there are legalconditions that may prevent that from continuing in some cases," he said. Imami jurisprudence "takes the child's interest as its primaryconsideration and may grant custody to the mother or the father according tocircumstances."
Impedimentstouching conduct or upbringing may move a child from one parent to the other,he said, "but the principle is regard for the child's interest, notconflict between the parents."
Both defensesshare a premise, that a custody rule should be judged by whether it serveschildren. What neither addresses is that Iraq now has two such rules, that theyproduce opposite outcomes for children of identical ages, that a Shiite parentmay in some circumstances move a family from one to the other without the otherparent's knowledge, and that the transfer can reach backward to contractssigned years before either rule existed in its current form.
Walid Mohammedal-Shubaibi, a lawyer, traced the trouble to Iraq's legislative record ratherthan to its clerics. Protest is a constitutional right, he told Shafaq News,but "the evaluation of laws should not be subject to emotion oragitation." Law 188 has been amended so often, in his reading, that itsinternal balance has broken down, Article 57 above all, producing "adistortion of justice between the parties, not only against women but againsttheir family networks as well."
Amendmentsintroduced under exceptional conditions have outlived the conditions thatjustified them, he said, and their continued operation "calls for seriouslegal review." The remedy lies neither in hardening positions nor infracturing into camps, he argued, but in restoring balance to the text.
He does notdraw the implication, but it follows. A civil code hollowed by six decades ofamendment, and defended by few, was poorly placed to resist a paralleljurisdiction grafted onto it.
Iraq'spost-2003 settlement rested on a premise that political power could beapportioned by sect while the law remained common to all citizens. The JaafariCode puts that premise to the test, and the early results are legible withoutany legal training. A Sunni woman and a Shiite woman, holding the same passportand living under the same constitution, may now inherit, be divorced, and keep or lose their children on differentterms.
The womendemonstrating in Baghdad are asking something narrower than whether Iraq shouldbe governed by religious law, and harder to dismiss. They are asking whether anIraqi's legal status can be rewritten, years after the fact, by someone else.
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Written and edited by Shafaq News staff.