A man can obtain a divorce ruling from the courts within 15 to 30 days. A woman has to wait between up to five years to obtain the same legal ruling often giving up many or all her rights.

Throughout her years of working as a lawyer, Zainab Al-Hassan saw dozens of women desperate to separate from their husbands. Time then forced these women to give up some or all of their rights, in exchange for a divorce paper from the court. Al-Hasan, who specializes in personal cases, counted 170 divorce cases which took up to five years to go through the courts. While waiting, Al-Hasan has seen women end up on the verge of collapse.

Lawyers such as Al Hassan are unable to change things when they see their clients give up their divorce rights – which include agreeing a financial settlement, property rights and the rights of children – under pressure from, not only time and court procedures, but from the social norms and pressures that prioritize men over women. Even if the man wants a divorce, the current custom is that he postpones the declaration of his desire and prolongs the dispute. When his wife asks for a separation, he is expected to refuse, except on the condition that her material rights are waived.

Cases and No Statistics

The Supreme Judicial Council issues a monthly table that includes the number of divorce cases in Iraq. It is distributed it to the media with no mention in the monthly statistics of who has submitted the application or the length of time that has passed between since the separation of the two parties and one of them resorting to the court to obtain the divorce ruling. Muhammad Sami, the media coordinator of the Supreme Judicial Council that runs courts in Iraq, told Jummar that the Council does not have statistics for cases that have lasted for years, nor does it have statistics on the type of divorce which can be arbitrary (when a man uses the right to divorce arbitrarily), or khula.^[1] The rights of any of the mukhla^[2] are forfeited in a marriage in which the khula was taken. “We record divorce cases by general status,” said Sami.

Despite this, anecdotal stories that circulate, in addition to the women we spoke to, highlight that there is a preference for men over women in divorce cases. Shahad (known by her first name) is one of the women in a race against time to separate from her husband. The story that she told us was intense: In 2009, Shahad married Mohammad, who committed physical and psychological violence against her. After one year of marriage and giving birth to her daughter, she had to move into her family’s home because Mohammad could no longer support her. In 2011 Shahad gave birth to her second child. Soon after Mohammad disappeared for three months and then returned via a phone call to her father to ask him to meet the two clans.

“We did not know the reason for his request, but I expected that he intended to complain to my family, as most Iraqi families do in the event of a dispute between the spouses. The clan will then intervene,” said Shahad, who later found out that her husband would go beyond just complaining.

When the two clans met, Mohammad brought charges against Shahad, claiming that life with her was impossible and asked for divorce, giving up all of her rights. “I have gained nothing but loss from this marriage,” he said to the sheikhs and the elders of the two clans. Shahad’s father refused Mohammad’s request, but the latter visited him a few days later and threatened to defame his daughter and claim that she had cheated unless she gave up her rights.

Although the Penal Code, which is informed by Islamic codes, is strict in the issue of proving adultery, a husband’s claim is often sufficient to stigmatize a woman even without evidence. The prosecutor will find the court and society working in his favor. In this case, society will believe any statement issued by Mohammad regarding the supposed betrayal he experienced. This often means imprisonment, as well as the social stigma, as Article 277 of the 1969 Iraqi Penal Code stipulates that an adulterous wife should be imprisoned for five years.

“I did not betray him, but an attempt to defame me alone will be enough to eliminate me. We live in a society that lives on the principle that there is no smoke without fire,” Shahad says.

Mohammad’s plan succeeded. Shahad’s father’s position changed and he himself forced her to give up her rights. The divorce took place in 2013, after a ruling was issued in the second session of the severance agreement filed by Mohammad following a two-year struggle, which Shahad described as “a war based on extortion.”

A Bet on Time

In contrast to Shahad, Aseel, 50, refuses to give up her rights in exchange for obtaining a divorce after two and a half decades of marriage.

“Life with my husband is full of humiliation and physical abuse. I was patient only for the sake of my daughter who is now 23.”

In 2019, Aseel filed a severance agreement in court. The court made repeated summons to the husband, which he avoided and did not attend the sessions. She entered into a legal controversy that she could not understand. As in the case of Muhammed, the husband of Shahad, Aseel’s husband insisted that she give up all her rights in exchange for divorce. But he added another request, with the intention of blackmail, asking her to sign a blank piece of paper for him to use if she demands her rights.

“I started the severance proceedings three years ago, and up until now, I have not received my right to divorce. I demand my rights to support my daughter and cover household expenses. I have not been able to obtain any of that because my husband’s lawyer falsely claimed to the courts that he was unemployed”.

The husband avoided paying alimony and managed to continue to avoid any agreement. Aseel is determined not to waiver, even though her case may take another three years in the courts. 

If Aseel’s husband had avoided paying alimony by claiming he was unemployed, Abdullah, 35, found a double excuse to avoid granting rights to his wife Rafal and their son. Abdullah married Rafal and had a child with her. After two years he traveled to Germany to certify his doctorate and obtain work and residency there. For two years, Rafal and Abdullah waited in Baghdad, thinking there was only 4 months left for her and their son to go to meet him, not knowing that this meeting would never take place.

“I fell in love with another woman and, because the law in Germany does not allow the union of two wives, I divorced Rafal in absentia while she was in Iraq and married my beloved here in Germany,” said Abdullah. Rafal did not accept the divorce and agreed to continue the marriage while her husband had a second wife. But Abdullah said, “I divorced her according to German law. Because I wanted to reside here, I had to divorce.”

Rafal was not able to obtain any of her divorce rights, even though her divorce was classified as arbitrary and the man should grant her rights with compensation for the harm she has suffered against her will. “She could not take any of her rights because I was outside Iraq. In addition to that my lawyer demonstrated to the court that I am still a student in Germany. This determines the alimony to be a very small amount, almost a formality, that I give her every month over four years,” Abdullah said in a calm tone.

The law grants a woman who has been arbitrarily divorced some compensation, provided that the amount of alimony does not exceed two years. However, the man can avoid paying, as happened in the case of Abdullah as soon as he can show that he is unemployed and that he does not own any wealth. But in the case of men with some wealth, “many of those who own homes or private cars transfer their ownership to the names of a member of their family to avoid granting the divorced woman her rights,” said legal expert Muhammad al-Agaili.

Infallibility

The Personal Status Law No. 188, established in 1959, was considered to be an advanced and ambitious model for a number of countries in the MENA region. However, the law gives priority to men over women. The articles of the law are in harmony with Islamic Sharia, which grants infallibility to the man, giving the power of divorce to men. This means that “a woman cannot get divorced from a man unless she gets his consent or (he authorizes her to get divorce from him on her request) provided that this is a condition which has been pre-established in the marriage contract,” says lawyer Zainab Al-Hassan.

“Only a man can ask for a divorce. Articles 40, 41, and 42 of the Personal Status Law allow a woman to request divorce if she can prove that her husband abandoned her, caused harm to her, or was imprisoned.” However, these damage according to Al-Hassan, are difficult to easily prove. On the other hand, a man can obtain a divorce easily, “Both religion and the Personal Status Law, which was developed in accordance with the texts of the Islamic religion, give the man the right to divorce his wife, even if the reasons are very simple,” according to legal expert, Muhammad Al-Agaili.

Man’s Privilege

Due to the absence of statistics regarding divorce procedures, Jummar spoke to six lawyers who regularly works on severance, divorce, and alimony cases. According to the information we obtained, 20% of women who wished to divorce continued their severance lawsuits for up to five years in the personal status courts. Severance agreements were only obtained once they had waived all of their rights.

Conversely, approximately 90% of men won their severance case within 15 to 30 days. The reason for this, according to legal expert Muhammad al-Agaili, is that “infallibility according to the Islamic religion is in the hands of the husband.” He also referred to another matter that often undiscussed, that is the opinion of judges.

“The judge does not dare to agree to the separation of spouses at the request of the wife easily and without strong arguments and clear proofs, because they fear violating what religion stipulates,” Al-Agaili said.