The philosophy of custom in the mutual consent element of the marriage contract, a study in light of the Iraqi Personal Status Law No. 188 of 1959

Marriage is the highest human relationship and bond, given its great sanctity and seriousness, as it is the foundation upon which healthy families are established and the first building block in building a healthy society, and since the world is witnessing continuous progress and change in all areas of life, which is greatly reflected in a change in the behavior and habits of individuals, especially in Consensus for a marriage contract that is most closely related to what is common and customary among people and the role that custom plays in its issues.Therefore, this study focused on clarifying the extent to which the Iraqi legislator adopted custom in the element of mutual consent, in particular because it occupies a place of great importance, considering that it is the only element upon whose availability the marriage is based, and on whose failure the invalidity of this marriage is based, by deducing the places that made it In it, custom is the basis of the text. Engagement, consent, and some contractual conditions related to “abstention from wives and the wife’s work,” are the most prominent signs of considering custom as a social necessity imposed by its binding force. Conversely, it clarifies the places in which the Iraqi legislator refused to adopt custom and neglected its value despite its importance. There is no doubt that this is considered a deficiency in legislation that should be remedied.