Filiation and the Protection of Parentless Children : Towards a Social Definition of the Family in Muslim Jurisdictions



The Iraqi legal corpus on filiation consists of a set of rules that are a mix of traditional law and modern law. Inspired by Islamic law in general, the Personal Status Code of 1959 expressly recognizes two grounds for establishing filiation, namely valid marriage (firash) and acknowledgment of filiation (iqrar). The Code of Evidence of 1979 is more modern, allowing the court to expand its investigations by resorting to DNA tests and testimony (bayyina). In this respect, the lenient conditions under which case law admits the existence of a valid marriage significantly facilitate the establishment of filiation. The child who does not enjoy legal filiation under the conditions mentioned previously, designated as majhul al-nasab, is nonetheless entitled to a certain degree of protection with regard to civil status and nationality. Furthermore, the Iraqi legislature has created an institution called affiliation (damm), which allows an orphan or a child of unknown filiation to be linked to a family in a definitive manner, even though adoption is formally prohibited. This institution can create a filiation link that is similar to that which results from an adoption, and can therefore be considered a true functional equivalent of adoption.



Ce contenu a été mis à jour le 13 août 2019 à 13 h 41 min.