Unregistered marriages in Iraq: women deprived of rights and children denied educational opportunities

Shafaq News/ Many women in Iraq are losing their rights due to unregistered marriages in the legal system, and they remain unacknowledged in official documents even after years of marriage. This situation also impacts their children, who cannot attend school because they do not have birth certificates.

Some young people who have secret relationships resort to religious leaders to conduct covert marriage contracts to conceal their marriages. Moreover, some men marry second wives without telling their families, which causes problems with their first wives.

Legal expert Ali Al-Tamimi explains to Shafaq News Agency that "marriage is fundamentally about partnership, with various definitions provided by jurists." Noting that "the Personal Status Law No. 188 of 1995 outlines marital rights in its initial chapters, ensuring that these rights align with Sharia principles and safeguard the interests of both spouses."

Al-Tamimi emphasizes that "marriages conducted outside the legal system infringe upon women's legitimate rights. Despite this, many women initially overlook these issues, considering them customary, only to later find themselves disadvantaged by such marriages."

Three slaps

Al-Tamimi shares the poignant account of a woman (H.A.), who faced a series of challenges due to her marriage outside the legal system.

H.A. reflects on the repercussions of delaying her official marriage registration, recounting, "I was just 15 when I got married, but the court regulations at the time prohibited girls below 18 from formal marriage contracts."

Consequently, she resorted to a religious marriage ceremony. A year into their marriage, she gave birth to a child. However, due to her unofficial marital status, she encountered difficulties in obtaining a birth certificate for her son, leaving her in legal limbo.

The law required a missing person to be absent for at least four years before being declared deceased.

By the time her son turned six, old enough for school, her financial situation had deteriorated, exacerbating her plight.

She took up menial jobs to make ends meet, but her struggles persisted. The situation worsened when her husband's family legally divided his assets four years after his disappearance, excluding her and her son due to their unofficial marital status.

Legal expert Ali Al-Tamimi reflects on this narrative, attributing the hardships faced by H.A. and many others to societal norms, legal complexities, and the challenges of asserting their rights and those of their children, underscoring the importance of formalizing marriages through legal channels for protection and recognition.

The legal contract

Legal expert Ahmed Al-Abadi delineates the nuances of external marriage contracts, comprising two components. The initial phase involves a preliminary agreement during the engagement, where a religious figure typically formalizes a verbal or written contract. This preliminary pact is the foundation for the official marriage contract, which can be authenticated through a rare legal procedure at the personal status court.

Al-Abadi clarifies to Shafaq News Agency that "these preliminary agreements, often called the "legal contract," serve to establish a legitimate relationship between the couple. Subsequently, the spouses may proceed to the personal status court to finalize the marriage contract."

However, Al-Abadi states, "Paragraph 5 of Article 10 in the Personal Status Law mandates penalties, including imprisonment or fines, for individuals engaging in contracts outside the court. The court is obligated to authenticate such contracts, with penalties primarily directed towards the husband."

Moreover, Al-Abadi highlights scenarios where marriages occur, leading to children and subsequent divorces, all conducted outside the court through religious figures. In such cases, the wife must authenticate the marriage contract and divorce to register the children, as legal identity documents are contingent on this authentication process.

He underscores that "many children face obstacles in education due to the absence of personal status identities, which can only be obtained by authenticating external marriage contracts. This authentication informs the Nationality Directorate about the marital status and parentage of the children."

Al-Abadi further discusses clandestine marriages, often involving second wives, where men opt for external contracts to conceal these unions from their families. These secretive marriages may eventually end in court proceedings, particularly during disputes between the second wife and her husband.

Al-Abadi attributes the prevalence of external marriages to various factors, such as second marriages or women desiring discreet unions to avoid familial scrutiny. He stresses that "both parties should bear legal penalties for engaging in unauthenticated external marriages, emphasizing the shared responsibility between spouses in such cases."

The marriage of a woman without her guardian

In his statement, religious figure Ahmed Al-Husseini elucidates that religious leaders only conduct marriages with the consent and knowledge of the woman's guardian, typically her father or paternal grandfather.

"In cases where the woman's guardians are deceased, and she is of sound mind, she assumes guardianship of herself, with no external authority having guardianship rights over her, as permitted by Sharia law, albeit subject to customary practices," says Al-Husseini.

Al-Husseini emphasizes to Shafaq News Agency that "the announcement of the marriage should involve the presence of relatives from both the man and woman's families, highlighting that religious figures cannot officiate a marriage solely based on the couple's mutual desire to wed."

Regarding the issuance of marriage documentation to safeguard the woman's rights, Al-Husseini clarifies that "the Sunni Endowment Diwan provides such documents, contrasting this with the Shiite Hawza, which lacks a similar documentation process."

Al-Husseini concluded that "according to the beliefs of the Ahl al-Bayt (a term that refers to the family of the Islamic prophet Muhammad,) marriages do not necessitate witnesses, although divorce proceedings require witness testimony."

The law protects the rights

Social researcher Shahla Hafez pointed out that "marriages conducted outside the legal framework pose significant challenges for women, potentially resulting in the loss of their rights, with court proceedings often extending over several years."

In her discussion with Shafaq News Agency, Hafez emphasizes "the criticality of formalizing marriages within the court system, as it ensures legal protection of rights." She urges women "to refrain from accepting marriages conducted outside official channels and advocates for authentication of marriages through court procedures to safeguard their rights."

Earlier this month, Human Rights Watch's recent report revealed that religious leaders in Iraq oversee numerous unregistered marriages annually, including child marriages, which blatantly disregard Iraqi laws and lack official documentation. These marriages jeopardize the rights of women and girls, often leaving them vulnerable without necessary social or financial support.

Human Rights Watch calls on Iraqi authorities to address this issue urgently, recognizing the widespread impact of unregistered marriages and the urgent need to protect women and children's access to crucial services independent of their civil status.