Guardianship Conditions Libyan Legislation 10/1984
As stipulated in article M65, general conditions, along with those for individuals, need to exist when guardianship is granted. Article M65 states that ‘the guardian must be an adult, capable, trustworthy, able to bring up the child and free from transmittable diseases’.
The condition that is specific to a potential female guardian is that ‘the nursing mother should not be married to a man who is considered to be marriageable to the child’ (article M65). It means that the nursing mother’s right to guardianship can be cancelled by her marriage, unless the man was unmarriageable to the child.
Conditions for a potential male guardian are also described by article M65: ‘the guardian man should be unmarriageable to the girl, and should have a woman who will nurse the child.’ The son of the uncle, for example, does not have the right to be a guardian of his female cousin, because he is considered to be of marriageable kin.
Article M66F.A states: ‘custody will fail if any of the mentioned conditions in article M65 were invalid.’
Article M66F.B clearly states how guardianship can also lapse: ‘the right of guardianship will lapse by the act of silence on the part of the individual who had the right for it for a whole year counted from the date of his/her knowledge, unless it was impossible for the request to be made.’ Noteworthy is the term the ‘whole year’, because this is the defining criteria in this circumstance. In this situation, the issue of granting guardianship is totally dependent on the time when the individual who is requesting to be guardian gained knowledge of their eligibility. If the ‘whole year’ passes without a request being made, then the individual’s eligibility will be deemed invalid in the future.
The law states in article M66F.C that ‘guardianship returns to its first owner when its cause disappears, unless the court decides otherwise in order to fulfil the needs of the child’. ‘The best interests of the child’ is implicit in this article because the priority is the needs of the child.
LHC decisions
In an early case heard by the LHC Case 1/2, 1956, the decision handed down by the sitting panel of judges broadly detailed the required conditions of a prospective guardian:
According to Islamic legislation, whoever the guardian is, whether it be a male or a female, they must have some required characteristics including; sense and capability to...
[meet] the needs of the guarded child/ren, the female guardian must have a safe place where she can protect a teenage girl, loyalty in religion and maturity, lack of transmittable diseases, and the female guardian should not be married... [except] if she was married to a person who was unmarriageable to the guarded girl, or the person who has the right of guardian knew about it and did not ask for it for a whole year without an excuse, so that way his guardianship will be cancelled. However, if it was confirmed in the proceedings that the woman who was appealed against got married four years ago and the appellant did not object or [contradict] this statement, the judgment that has been agreed on which says that the appellant neglected requesting guardianship of his two young brothers from his mother after she got married until the legal period passed away is not against the law and is compatible with the Malikiyah school of jurisprudence.51Since this case was presented to the LHC, there has been a continual emphasis on these guardianship conditions in many other cases. Such cases will be discussed in detail along with other cases due to their importance and relevance to this study.
D.