Factors Affecting the Continuity of Marital Life in the light of the Iraqi Personal status Law: A Comparative Study

Section: RESEARCH
Published
Mar 1, 2022
Pages
1-54

Abstract

Marriage is still the most important social institution as it constitutes the core of the society. Thus, supporting and promoting the marital relationship is one of the main public policy concerns. As such, the law as a public policy instrument plays a prominent role in addressing and regulating marital contract. Marriage is supposed to be a firm covenant which is intended to be unbreakable. This paper examines what factors that contribute to marital success and how the law addresses the issue . The study looks at the aspects of the Iraqi Personal Status Law that constitute factors in the continuity of married life, and to identify the deficiencies in the law that might affect the marriage continuity. The study utilizes the comparative legal research method of the Iraqi personal status Law and the amended law of the Kurdistan Region Iraq.

References

  1. - Abu Abdullah Muhammad bin Ahmed bin Abi Bakr bin Farah al-Ansari al-Khazraji Shams al-Din al-Qurtubi (deceased: 671 AH) al-Jami 'al-Ahkam al-Quran, edited by: Ahmad al-Bardouni and Ibrahim Atfeesh, Vol. 14, (Cairo: Dar al-Kutub al-Masriya, 2nd ed. 1384 AH-1964 AD).
  2. - Ibtisam bin Khalifa, medical examination before marriage, A dissertation that is part of the requirements for obtaining a masters degree in Islamic sciences - specializing in jurisprudence and its fundamentals,Submited to (Martyr Hama Lakhdar University - Al-Wadi, Institute of Islamic Sciences, Department of Sharia: 1435-1436 AH / 2014-2015 AD).
  3. - Iraqi Personal Status Law No. 88 of 1959, as amended.
  4. - Type of judgment: cassation, personal status, No. 775 / separation due to harm / 1981, on: 05/13/1981, Federal Court of Cassation - Iraq. The verdict link: (last visited 6/2/2021): https://www.hjc.iq/qview.41/
  5. - Abd al-Bari Muhammad Khallah, separation of spouses due to Psychological disturbances, (The Islamic University Journal for Sharia and Legal Studies, Volume 28, Number 2, pp. 152-176, 2020).
  6. - Muhammad bin Abdullah al-Khurshi al-Maliki Abu Abdullah (deceased: 1101 AH), a brief explanation of Khalil al-Kharshi, vol. 3, (Beirut: Dar al-Fikr for Printing, date of publishing, None).
  7. - Type of judgment: Cassation, No. 806 / Personal Status Board, dated: 03/08/2012, Federal Court of Cassation - Iraq. The verdict link: http://iraqld.hjc.iq:8080/VerdictsTextResults.aspx
  8. - Abdel Nasser Muhammad Salih Jaber, The Marriage Contract Annulment Case for Incompetence: A Jurisprudence Study Compared to the Jordanian Temporary Personal Status Law No. 36 of 2010 AD (Al-Meezan Journal for Islamic and Legal Studies, Volume Four, Issue 1, Rabi` Al-Akhir 1438 AH / January 2017 AD. ).
  9. - Muhammad bin Makram bin Ali, Abu al-Fadl, Jamal al-Din Ibn Manzur al-Ansari al-Ruwai al-Afriqi (deceased: 711 AH), Lisan al-Arab, Notes: to Yazji and a group of linguists, vol 1, (Beirut: Dar Sader, 3 ed., 1414 AH).
  10. - Type of judgment: Cassation, No. 1936 / Personal Status board, dated: 06/05/2012, Federal Court of Cassation - Iraq. The verdict link: (Last visited 6/2/2021): http://iraqld.hjc.iq:8080/VerdictsTextResults.aspx
  11. - Arab Al-Nasser and Qorqit Muhammad, the defects requiring the dissolution of the marriage, a comparative jurisprudence study in the light of contemporary developments, a memorandum submitted to complete the requirements for a master's degree in the specialty: Jurisprudence and Fundamentals, (Algeria: University of Colonel Ahmed Deraya - Adrar - College of Humanities, Social and Islamic Sciences Department of Islamic Sciences, Academic Season 2018-2019 / 1439-1440 A.H.)
  12. - Muhammad Jamal Abu Sneina, Marital Obedience in Islamic Jurisprudence and Personal Status Law, (Amman: Dar Al Thaqafa for Publishing and Distribution, 2005).
  13. - Type of judgment: Cassation, No. 5359 / Personal Status Board, dated: 07/08/2012, Federal Court of Cassation - Iraq. Referee Link: (Last visited 6/2/2021): http://iraqld.hjc.iq:8080/VerdictsTextResults.aspx
  14. - Ali Lafta, The Phenomenon of Divorce and the Iraqi Family Crisis, Islamic Center for Strategic Studies, (February 2017). On the following link (last visited 2/11/2019): https://www.iicss.iq/?id=40&sid=123
  15. - Muhammad Hasan Kashkool and Abbas al-Saadi, Explanation of Personal Status Law No. 188 of 1959 and its amendments, (Baghdad: The Legal Library, 2nd Edition, 2011).
  16. - Type of judgment: Cassation, No. 3496 / Personal Status Board, dated: 07/08/2012, Federal Court of Cassation - Iraq. The verdict link: (Last visited 6/2/2021): http://iraqld.hjc.iq:8080/VerdictsTextResults.aspx
  17. - Fathallah Tufaha, Sharia measures to reduce the incidence of divorce in the Jordanian reality - a comparative jurisprudential study, (An-Najah University Research Journal (Human Sciences), vol. 24, (5), 2010).
  18. - Muhammad Zaid Al-Abyani, Explanation of Sharia Laws in Personal Status, Vol. 1, Studied By, Muhammad Khaled Jamal Rustom, (Beirut, Lebanon: Al-Halabi Juridical Publications,1st Edition, 2006).
  19. - Type of judgment: Cassation, No. 4485 / Personal Status, dated: 07/15/2012, Federal Court of Cassation - Iraq. The verdict link: (Last visited 6/2/2021): http://iraqld.hjc.iq:8080/VerdictsTextResults.aspx
  20. - Laraibi Iman, Conditions attached to the marriage contract, a memorandum submitted to (University of Algeria -1, Faculty of Law, to obtain a master's degree in private law, family law branch, 2013-2014).
  21. - Mustafa Ibrahim Al-Zalami, Rulings of Marriage and Divorce in Comparative Islamic Jurisprudence, (Erbil: Rozhallat Press, 4th Edition, 2011).
  22. - Type of judgment: Cassation, No. 4485 / Personal Status Authority, dated: 07/15/2012, Federal Court of Cassation - Iraq. The verdict link: (last visited 2/6/2021): http://iraqld.hjc.iq:8080/VerdictsTextResults.aspx
  23. - Muhammad Al-Hassan Mustafa Al-Bagha, Judicial Annulment of Spouses' Defects in Islamic Jurisprudence and Syrian Personal Status Law, (Damascus University Journal of Economic and Legal Sciences Vol. 24 1st Issue -2008), pp. 531-578.
  24. - Mustafa Ibrahim Al-Zalami, the Authority of the Will in Divorce, Vol. 1, (Baghdad: Al-Ani Press, 1st Edition, 1984).
  25. - Type of judgment: cassation, personal status, No. 9395/2012, dated: 12/16/2012, Federal Court of Cassation - Iraq. The verdict link: (Last visit date 2/13/2021): https://www.hjc.iq/qview.1894/
  26. - Mustafa Al-Qudah, Early marriage and its implications, a comparative legal jurisprudence study, (Damascus University Journal of Economic and Legal Sciences Vol. 26 1st Issue - 2010), pp. (443-478).
  27. - Mustafa Al-Sebaei, Women Between Jurisprudence and Law, 4th Edition, Arab Republic of Egypt, (Country of publication: None, Dar Al Warraq, Dar Al Salam, 2010).
  28. - Type of judgment: Cassation, No. 6093 / Personal Status Board, on 24/04/2016, Federal Court of Cassation - Iraq. The verdict link: (last visited 2/1/2021): http://iraqld.hjc.iq/VerdictsTextResults.aspx
  29. - Hisham Khoudary, Effects of a medical examination on the conclusion of marriage, a supplementary memorandum of the requirements for obtaining a master's degree in law specializing: Personal Status Law, submitted to (University of Muhammad Khader of Biskra, Faculty of Law and Political Sciences, Department of Law for the academic year 2014-2015).
  30. - Mustafa Al-Sebaei, Explanation of Personal Status Law, Vol. 1, Marriage and its Dissolution, Country of Publication: None, Publishing House, None, Edition 8, 2000).
  31. - Type of judgment: Cassation, No. 8382 / Personal Status, on: 12-22-2016, Federal Court of Cassation - Iraq. The verdict link: (last visited 1/2/2021): http://iraqld.hjc.iq/VerdictsTextResults.aspx
  32. - Hana Jassim Al-Sabawi, Divorce and its Reasons in the City of Mosul - An Analytical Study - (Mosuliya Illuminations - Issue (74) / Ramadan 1434 AH / August 2013 AD). On the following link (last visit date 2/14/2021): http://uomosul.edu.iq/pages/ar/mosulStudiesCenter/40602
  33. - Mansour bin Yunus bin Salah al-Din Ibn Hassan bin Idris al-Bahouti al-Hanbali (deceased: 1051 AH), Kashaf Al qinaa an matn al-iqnaa, Vol. 5, (country of publication: none, Dar al-Kutub al-'Ilmiyya, date of publication, none).
  34. - Ahmad Al-Ghandour, Personal Status in Islamic Legislation, (Kuwait, Emirates, Egypt, Jordan: Al-Falah Library for Publishing and Distribution, 4th Edition, 2010).
  35. - Awat Kamal Hamdamin, the spouses' disavowal in the Iraqi Personal Status Law, a comparative study with Islamic law, a dissertation submitted to the Council of the College of Law and Politics, (Salah al-Din University - Erbil. It is part of the requirements for obtaining a master's degree in private law, 2012)
  36. - Dr. Osama Mahdi, revealed reasons for the rise in divorce cases in Iraq, (publication date, Sunday May 5, 2019): on the following link (last visit (28/2/2021): https://elaph.com/Web/News/2019/05 /1248811.html
  37. - Law No. (15) of 2008 Law Amending the Application of Personal Status Law No. (188) of 1959 as amended in the Kurdistan Region - Iraq, Kurdistan gazette, Issue: 95, Date: 12/30/2008, Page: 15.
  38. - Type of Judgment: cassation, Personal Status, No. 954 / Compliance / 2008, on: 23/3/2008, Federal Court of Cassation - Iraq. The verdict link: (last visited 9/2/2021): https://www.hjc.iq/qview.391/
  39. - Ahmad Al-Kubaisi, Al-Wajeez in Explanation of Personal Status and its Amendments, Vol. 1, (Baghdad: The Legal Library, Al-Atak Company for Book Industry, Beirut, 1990).
  40. - Bassam Musa Al-Nuzli, The provisions of contemporary forms of fraud in marriage contracts, a comparative jurisprudential study, a dessertation that provided an update on the requirements for obtaining a master's degree in comparative jurisprudence from the Faculty of Sharia and Law in (The Islamic University - Gaza, 1431 AH - 2010 AD).
  41. - Type of Judgment: cassation, Personal Status, No. 214 / Declaration / 2008, dated 03/25/2008, Federal Court of Cassation - Iraq. The verdict link: (last visited 7/2/2021): https://www.hjc.iq/qview.411/
  42. - Belarbi Khalidiya Dalilah, Effects of Defects of Satisfaction on the Marriage Contract, Memorandum for obtaining a Masters Degree in Family Law, (University of Algiers, Faculty of Law - Said Hamdeen - 2014-2015).
  43. - Type of judgment: cassation, personal status, No. 759 / Divorce / 2008, dated: 21/4/2008, Federal Court of Cassation - Iraq. The verdict link: (last visited 2/13/2021): https://www.hjc.iq/qview.407/
  44. - Usama Deeb Masoud, Coercion in the Marriage Contract, (Amman: Dar Al Thaqafa for Publishing and Distribution, 1st Edition, 2011 AD, 1432 AH).
  45. - Iyad Fawzi Tawfiq Hamdan, The Regulations for Limiting Divorce in Islam, (Islamic Studies, Courtesy Annual Scientific Journal, Issue Three, 1432 AH 2011).
  46. - Saad al-Din Mulla Abdullah Belbaitani, The position of Islamic jurisprudence on the amendments made to the personal status law in the Kurdistan Region - Iraq (a comparative study), a thesis submitted to the Council of the College of Islamic Sciences - (Salah al-Din University - Erbil and it is part of the requirements for the doctoral degree In Islamic Studies, April 2011).
  47. - Type of judgment: cassation, Personal Status, No. 879 / Separation due to Damages / 2008, dated: 4/5/2008, Federal Court of Cassation - Iraq. The verdict link: (Last visited 22/2/2021): https://www.hjc.iq/qview.406/
  48. - Shinawi Ghanima and Belabbas Safia, medical examination before marriage in Islamic jurisprudence and Algerian legislation, a memorandum for obtaining a master's degree in private law specializing: internal private law, submitted to (University of Mouloud Mammeri Tizi Ouzou, Faculty of Law and Political Science, Department of Law, 2016 ).
  49. - Tahseen Bayrakdar, The Marriage Forbidden in Islamic Law, (Damascus: Dar Ibn Hajar, 1st Edition, 1428 AH-2007 AD).
  50. - Type of Judgment: cassation, Personal Status, No. 2457 / Divorce/ 2008, on: 18/8/2008, Federal Court of Cassation - Iraq. The verdict link (last visited 2/13/2021): https://www.hjc.iq/qview.615
  51. - Atef Muhammad Abu Harbeed, The Impact of AIDS on Marriage and the Provisions Related to it, (The Islamic University of Gaza, College of Sharia and Law, a working paper submitted to the first conference of the College of Sharia and International Law "Islamic Legislation and Reality Requirements" held on Safar 13-14 / 1427 AH 13-14 March / 2006 AD).
  52. - Shams al-Din, Muhammad bin Ahmad al-Khatib al-Sherbini al-Shafii (deceased: 977 AH), Moghny Almohtaj, meanings of the words of the Minhaj, Vol. 4, (the country of publication: None, Dar Al-Kutub Al-Ilmiyya, 1st Edition, 1415 AH - 1994 AD).
  53. - Type of judgment: cassation, personal status, No. 2445 / Divorce/ 2008, on: 18/8/2008, Federal Court of Cassation - Iraq. The verdict link (last visited 6/2/2021): https://www.hjc.iq/qview.617/
  54. - Aisha Muhammad Sidqi Musa, The Impact of Chronic Diseases on Marital Life in Islamic Jurisprudence, a dessertation presented to complete the requirements for obtaining a master's degree in jurisprudence and legislation at the College of Graduate Studies at (An-Najah National University in Nablus, Palestine, 2014).
  55. - Othman Al-Takrouri, Explanation of Personal Status Law, (Amman: Dar Al-Thaqafa for Publishing and Distribution, 1st Edition, 2nd version, 2004).
  56. - Type of judgment: cassation, personal status, No. 2719 / Divorce / 2008, on: 19/8/2008, Federal Court of Cassation - Iraq. The verdict link: (last visited 2/13/2021): https://www.hjc.iq/qview.603/
  57. - Abbas Ali Al-Ali, The Phenomenon of Divorce in Iraqi Society, Causes and Solutions, Vol. 1 (Al-Hiwar Civilized - Issue: 5591-25 / 7/2017). On the following link (last visited 5/11/2019): http://www.ahewar.org/debat/show.art.asp?aid=566559&r=0
  58. - Farouk Abdullah Karim, Alwasit in Explaining the Iraqi Personal Status Law, (Sulaymaniyah: printed at the expense of Sulaymaniyah University, 2004).
  59. - Type of judgment: cassation, Personal Status, No. 814 / Divorce/ 2011, on: 22/2/2011, Federal Court of Cassation - Iraq. The verdict link: (last visited 6/2/2021): https://www.hjc.iq/qview.1624/
  60. First: books
  61. Fourth / Judicial decisions of the Court of Cassation
  62. References
  63. Second: letters, dissertations, and periodicals
  64. Third / Legislations
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