ALSIYASAT ALSHAREIAT FI TASJIL EAQD ALZAWAJ WATATBIQATIH FI ALMAHAKIM ALEIRAQIA

Almighty Allah (S.W) has legalized marriage and prescribed pillars and conditions to be adhered during marriage, Muslim jurists have agreed upon these laid Pillars and condition and differed in minor issues among them. The registration of marriage is not considered part of the marriage pillars and conditions. No single text and proof in the divine sources (Quran and Sunnah) and the secondary sources (Muslim census and Qiyas) reveals that marriage registration as a pillar and condition in the Muslim marriages. Due to customs and traditional changes and for the purpose of preserving the rights of both spouses from abuse, some contemporary Muslim jurists in the light of Ijtihad and the legal laws have legalized registration of marriage with responsible authorities. In recognizing the marriage contract, they have different opinions related to registered and unregistered marriages. Due to the increase marriages taking place outside the courts of Iraq and for the purpose of preserving the rights pertaining to marriages and avoiding any negative effects resulting from it, the Iraqi legislator has banned marriages outside Iraqi and provided some restrictions and legal conditions that must be adhering to complete the contract. In the case of breaching the contract, the husband is subject to financial or physical penalty as prescribed in the Iraqi law. However, despite of these restrictions and penalties imposed by the Iraqi legislation, still there is significant increment of marriages contracts outside Iraqi courts. The reason behind this is due to the Iraqi judiciary’s leniency in the penalties, by just imposing the financial penalty to the husband and neglecting the physical aspect of the penalty and restricting the registration of the marriage contract with the responsible authorities. This study will focus on comparing the opinions of Muslim jurists related to marriage contract with laws and judicial applications in the Iraqi courts to highlight and explain policy adopted by the Iraqi legislator in registering the marriage contract.