Accommodation of the Guardian Libyan Legislation 10/1984

Article M70FA,B states that: ‘the divorced woman deserves to live in suitable residence as long as her right in custody is still active. If her guardianship is terminated, then her right to suitable residence will fail.’

LHC decisions

The LHC in the Case (1/38, 1991) stated:

According to Article 70/A taken from legislation (10/1984), the sponsor of the guarded children has the duty to supply the suitable residence for the divorced (mother) in order [for her] to live with the guarded children for the period of her guardianship, and the court has no jurisdiction on this right and so cannot contradict it.

Commentary

If the female guardian does not have a place of residence, the father must provide such suitable shelter. Therefore, a divorcee who has custody of any children is entitled to suitable accommodation for as long as her right to guardianship stands and her entitlement to such accommodation terminates with the termination of guardianship. These rights continue until the child(ren) complete their education and are able to earn a living.^[377]

Some amendments were made to article M70FA, by Legislation 9/1994, which details that if a female guardian loses guardianship for one reason or another, she is still eligible to stay in the marital home until she remarries. The only time this will not apply is if the woman has been convicted of committing adultery.

Originally, article M70FA,B stated that the female guardian would lose her residency once she had lost her guardianship. It is clear that the change to this article is important for a number of reasons. The first reason is that the law is now protecting the mother post guardianship except in the instance mentioned. Secondly, the law highlights the continued link between the mother and child and ensures a safe place for the child when visitation rights are exercised by the mother. Finally, it can be seen that guaranteeing the place of residence keeps some sense of stability in what can be a very turbulent divorce process, thereby reducing the emotional scars on the child.

With regard to accommodation provisions to both the female guardian and guarded child, this chapter argues that under Libyan legislation, ‘the best interests of the child’ are protected. The provisions outlined regard­ing accommodation display a concern to maintain solid sense of stability, in particular for the child, in an extremely uncertain phase of their life. Such stability is essential from an Islamic perspective, and consequently ensures the ‘best interests’ principle defined in CROC.

IV.