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Personal Status Law No. 188 of Iraq (1959) – 1: Marriage

Chapter 1 – Marriage

Section 1 – Marriage and Betrothal

Article 3

1- Marriage is a contract between a man and a woman who is lawfully permissible to him, the purpose of which is to establish a bond for a mutual life and procreate children.

2- If the marriage contract has been initiated, the two parties shall abide by the provisions incumbent upon them at the time of its initiation.

3- The promise of marriage, the recital of Al-Fatiha (the first Surah of the Holy Quran) and the betrothal are not considered as a contract.

4- Marrying more than one woman is not allowed except with the authorization of the qadi (judge). Granting this authorization is dependant on the fulfillment of the following two conditions:

a- The husband should have the financial capacity to provide for more than one wife*.

b-   There is a legitimate interest.

5- If justice between wives is feared, polygamy may not be allowed. The issue would then be left to the judge’s determination.

6- Each person who concludes a marriage contract with more than one wife, contrary to the stipulations of paragraphs 4 and 5, shall be sentenced to no more than one year of imprisonment or charged with a fine not exceeding 100 Dinars or both.

7- Exception from the provisions of paragraphs 4 and 5 of this article: marriage to more than one woman is permissible when the prospective wife is a widow**.

*Taking back a wife (after having pronounced divorce upon her) is not considered as a marriage to more than one woman for the purposes of paragraphs 4 and 5 of article 3 of this law, if the husband had married another woman before taking back his wife. This was pronounced under resolution  147 promulgated by the Revolutionary Command Council dated January 2, 1982. Besides, the husband was exempted from the condition of getting the approval of his district in what concerns taking back his wife, if the laws regulating the marriage usually require him to get such approval before getting married.

**Paragraph 7 was added at the end of article 3 by virtue of the sixth amendment law  189 of the year 1980.

Section 2 – Marriage Pillars and Conditions

Article 4

A marriage contract is initiated by an offer expressed by one of the two parties to the contract – either verbally or customarily – and the acceptance of the other party with the agent (wakil) acting in his place.

Article 5

A marriage contract is valid if the two parties to the contract, or whoever acting in their places, meet the legal and lawful conditions.

Article 6

A marriage contract will not be initiated if one of the conditions of validity stated below is missing:

a- The offer and acceptance must be done in one sitting.

b- Each part to the contract must listen to the other’s words and understand clearly that what is intended is marriage

c-  The second party must accept the offer of the first party.

d-  Two witnesses having the qualification of legal competence must bear witness to the marriage contract.

e-  The validity of the contract must not be linked to a condition.

f- If the prospective husband is absent, he shall write to the one he wants to marry. The latter should read what he wrote or read it to two witnesses and they should bear witness that she accepts to marry him.

2- The legitimate conditions stipulated in the marriage contract must be fulfilled.

3- The wife has the right to revoke the contract when the husband fails to fulfill the conditions he agreed upon in the marriage contract.

Section 3 – Validity

Article 7

1- In order for the marriage to be valid, the two parties to the contract should be sane and have reached 18 years of age*.

2- The judge can authorize the marriage of a mentally ill person if it was confirmed in a medical report that his marriage entails no harm to society and that it is in his personal interest, provided that the other person accepts the marriage expressly.

*The  text  of  paragraph  1  of  article  7  was  repealed  and  replaced  by  the  current  text  by  virtue  of  the second amendment law  21 of the year 1978.

Article 8

1- If a 15-year-old person asks to be married, the judge can authorize his marriage if the eligibility and physical ability of the person in question was proven to him, after obtaining the approval of his legal guardian. If the guardian abstains from responding, the judge calls upon him to state his answer during a defined period. Thus, if the guardian does not object or if he submits an objection that is unworthy of consideration, the judge shall proceed to authorizing the marriage.

2- The judge can authorize the marriage of a 15-year-old person if he sees in it an urgent necessity. Giving such authorization is also conditional upon the attainment of legal puberty and physical ability*.

*The text of article 8 was repealed and replaced by the current text by virtue of the second amendment law  21 of the year 1978. Then it was decided that paragraph 1 falls within the said article and a second paragraph was added to it by virtue of the 12th amendment law  90 of the year 1987.

Article 9

1- No relative or non-relative has the right to force marriage on any person, whether male or female, without their consent. The contract of a forced marriage is considered void if the marriage is not yet consummated. Moreover, none of the relatives or other people has the right to prevent whoever is eligible for marriage from being married by virtue of the provisions of this marriage law.

2- A first degree relative who breaches the provisions of paragraph 1 of this article shall be sentenced to no more than three years imprisonment and charged with a fine of a specified amount. If the person who breaches this provision is not a first degree relative, he shall be sentenced to an imprisonment term varying from a minimum of three years to a maximum of ten years.

3- The Shari’a Court or the Personal Status Court must notify the investigation authorities of any violation of the provisions of paragraph 1 of this article so that they take legal action against the person in question. The court is entitled to hold him in custody to ensure his appearance before the said authorities. Furthermore, the person who was subject to coercion or prevention has the right to refer directly to the investigation authorities concerning this matter*.

*The text of article 9 was repealed and replaced by the current text by virtue of the second amendment law  21 of the year 1978.

Section 4 – Registering the Marriage Contract

Article 10

The marriage contract should be registered in a special record in the competent court without paying any fees, according to the following conditions:

1- Submitting a statement showing the identity of the two parties to the contract, their age, the amount of the dowry, and the absence of any legal impediment to the marriage. This document must be signed by the two contracting parties and certified by the Mukhtar (mayor) of the district or the village, or by two revered figures of the district’s citizens.

2- The document must be supplemented by a medical report confirming that the two spouses in question are free from communicable diseases and health impediments, in addition to other documents required by law.

3- The content of the document must be written on the register and signed by the two parties to the contract, through a written signature or a thumbprint, in the presence of the judge who then certifies the marriage and provides the spouses with the marriage evidence (Hujja).

4- The content of the documents duly registered is to be put into effect. In addition, they are applicable in what concerns the dowry as long as they are not subject to an objection before the competent courts.

5- Any man who concludes his marriage contract outside the court is punished with a period of imprisonment that is no less than six months and no more than a year, or charged with a fine that is no less than three hundred Dinars and no more than a thousand Dinars. If he concludes another marriage outside the court when he is already married, the imprisonment penalty shall range between a minimum of three years and a maximum of five years*.

*Paragraph 5 was added at the end of article 10 by virtue of the second amendment law  21 of the year 1978 and entered into effect thirty days after its publication.

Article 11

1- If a man avows to a woman that she is his wife and there is no legal or lawful impediment to the marriage and she believes him, her marriage to him is validated by his avowal.

2- If a woman avows that she has married a man and he believes her as she is alive and there is no legal or lawful impediment to the marriage, their marriage would be validated. But if he admits believing her only after her death, marriage between them will not be validated.

Next: Chapter 2 – Marriage

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