Law no. 100 of 1985: amending certain rulings on personal status
Law no. 100/1985 comprised similar articles to the repealed Law no. 44/1979, but presented certain concessions in light of the opposition to the previous law. Most significantly, the new law required a wife whose husband had married another woman to establish the material or mental injury that had been caused her if she wished to obtain a divorce;18 in the 1979 law, this injury had been a legal presumption.
Under the 1985 law, the injury was not defined, but had to be of a kind that rendered it impossible for ‘a couple such as them’ to continue married life; this indicated a relative definition of injury that might vary according to cultural and contextual circumstances and the social status of the injured person (the wife).As for the other particularly controversial article on the custodian’s right to the matrimonial dwelling, the 1985 law changed the wording, stating that: A divorced husband shall be required to provide appropriate independent accommodation for his young children by his divorced wife and for their custodian. If he does not do so during the waiting period, they shall continue to occupy the matrimonial home if it is rented for the duration of the period of custody.’19 An appeal to the Supreme Constitutional Court against this article was eventually rejected by the court for reasons of form.
In another change to the 1979 law, under the 1985 law ‘the consequences of talaq shall be effective from the date it is made unless the husband conceals it from the wife, in which case its consequences in terms of inheritance and other financial rights shall only be effective from the date of her knowledge of it’.20 Finally in this overview, the 1985 law reproduced with a few changes the 1979 provisions on the ‘house of obedience’, which are naturally of significance to a study of marital relations and the position of the wife. The first clause related to obedience comes as an addition to the original text or law no.
25/1920 cited above, to provide:It shall not be deemed grounds for forfeit of maintenance if the wife leaves the matrimonial home without the permission of her husband in circumstances in which this is permitted by a rule of the shaτi'a for which there is some text or prevailing custom or where this is required by necessity, nor if she goes out for lawful work provided that it does not appear that her use of this right is corrupted by abuse of the right, or that it is contrary to the interests of the family, and provided that her husband has not asked her to refrain from exercising her right.
This article appears to give the wife the right to go out to work and then takes it back again by allowing for ‘abuse of the right’ or a conflict with the interests of the family. If the husband is considered better placed to decide where the interests of the family lie, the law gives him the right to prohibit his wife from working, or from letting her leave the house. As for procedures that are to be followed in the event of the wife being held to have refused to obey her husband without a legitimate reason, the 1985 law sets these out in the section dealing with divorce for discord between the spouses and divorce on grounds of injury.22