Expenses for Maintaining the Child and the Guardian Libyan Legislation 10/1984

Article M69 states:

the mother does not deserve to be paid for her child’s custody while she is still under the bond of marriage to his father, so if they separated, or the female guardian was not the mother, then she deserves to be paid for her care of the child with the child’s assets, else the duty of maintenance is placed on the Wali.

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

LHC decisions

In a case related to the maintenance payments during guardianship, a mediation hearing was held prior to the case being presented to the court of instance. An agreement between a man and his divorced wife was reached. Under this agreement, the husband would pay his ex-wife all expenses incurred in caring for the daughter. However, no explicit figure was suggested. Libyan Legislation 10/1984 defines costs of custody in article 22: ‘Expenses of custody include the cost of residence, food, clothing, medication and any other expenditure required to maintain a normal life.’

When the case was heard in the appeals court, the father based his case on the fact that even though he agreed to pay for the costs of guardianship, he was not obliged to make any payments since there was no specific amount set under the terms of the mediation agreement. The appeal was rejected because the mediation agreement did not specifically mention any such payments.

Following the appeals court judgement, the mother took the case to the LHC. It ruled in favour of the mother, declaring that even though the existing agreement did not specify the costs of guardianship, such costs were obligated by law and not by any agreement which may have excluded such costs. Therefore the wali was now obligated to pay extra to cover the expenses of guardianship.

The text in Article 69, Legislation (10/1984) is concerned with the rules of marriage, divorce and their affect. This section declares that the mother is ineligible for any payments in return for caring for the children as long as she is still married to their father. If, on the other hand, the mother was to be divorced from the father or if the carer of the children was not the mother then she has the right to be paid for the care provided to the children.^[374]

Commentary

Islamic law obligates the wali to pay the expense of the supported child^[375] while a female guardian is responsible for the child’s daily needs. In doing so, it upholds ‘the best interests of the child’ by distributing the duties of the child’s care on both guardian and wali.

Libyan Legislation 10/1984 considers that caring for the child is a role that must be shared by both parents. The law believes that the mother needs to care for and maintain the everyday needs of the child, while the father needs to support this financially. When both parties fulfil their responsibilities under this arrangement, ‘the best interests of the child’ are all but guaranteed.

The Malikiyah Madhhab emphasises that payments made to the female guardian should be sourced from the wali. A decision as to how much should be paid is for the judge to decide, and that depends on the wali’s financial situation. In summary, the issue of financial support is clear under Libyan legislation. Regardless of the terms of arrangement set out in a guardianship case, that the financial needs for the guarded child must be met is implicit, and therefore the respective wali is bound to fulfil that obligation. Such guarantee of financial resources means that the ‘best interests’ principle as defined in CROC is upheld by Libyan legislation, which is based on Malikiyah jurisprudence.

K.