Question: I am a Muslim and I have a Muslim wife. I have a son who is ten years old and two daughters, aged 18 and 19 years. Currently, my wife is requesting for a divorce without any reason or any failure on my part. I provide appropriate housing and spend on the household. My question is: Will the Sharia Court respond to my wife’s request and order me to divorce her, knowing that I did not want a divorce? If my wife is divorced, do I have the right to take my children from her and raise them? Please advise.
Answer: According to Article 118 of the Personal Status Law, if the prejudice is not established and the wife has no valid reason to seek divorce, then the lawsuit shall be rejected. If the discordance is still continuing between the spouses, then the aggrieved party may file a new lawsuit. If the Family Orientation Committee and the judge are not successful in reconciling them, the judge shall issue a judgement appointing two arbitrators from among their parents, if possible, after asking each of the spouses to nominate for the next hearing, at the most, an arbitrator from either side from his and her parents. Otherwise, appoint arbitrators from amongst those who have the experience and ability to reconcile such issues. The two arbitrators have to find out the reasons of discordance and deploy efforts to reconcile the spouses.
If the two arbitrators fail to reconcile the spouses, the court shall present the arbitrators’ recommendations to the spouses and invite them to reconcile before issuing the judgement of separation, taking into consideration whether the offence is entirely or partially on the husband’s part or the wife’s part and whether separation has been sought by the wife or by the husband or by both. The wife may also request for Divorce by Agreement (Khul’) and the court may respond to her request.
It is up to the court to decide whether divorce can be allowed or not, according to the circumstances of the case and the claim requests and evidences presented.
Regarding children’s custody, it is a mother’s right established for her from the date of birth of the child and until the date determined for the expiration of such custody, which must be in accordance with the provisions of Article 156 of the law, that is, when the male child reaches 11 years of age and the female child reaches 13 years of age — unless the court decides to extend that age-limit for the benefit of the child and until the male child reaches the age of maturity and the female child is married.
In this case, since the boy is ten years old, the mother shall retain his custody, but not that of the two girls who are already 18 and 19. As a basic principle, the fosterer must satisfy some conditions or else the fosterer’s right to fosterage will be forfeited. Conditions such as the ability to raise a fostered child and provide for his or her maintenance and care, whether the child is married or not, in case she is a woman, etc are to be considered.
So far as you are concerned, you may request for the custody of your son if you can prove that the mother is not capable of the custody, thereby leaving the matter to the court to decide. But you must have around you a woman who is able to be a fosterer, according to Article 144 of the above-mentioned law.
In matters of fosterage, the scope of fosterage in all cases is based on the interest of the child and his or her benefits — even if at times this contravenes the interest of the guardian. This is because the right of the child to care and security is more important than the guardian’s right.
Claiming realty damages beyond warranty period
Question: I own a contracting company. Three years ago, I built a villa for a person and handed it over to its owner, free of any defects. A year later, I also did a final maintenance work on the villa and accordingly I received the last payment by way of warranty. Currently, the owner of the villa has filed a civil lawsuit against me, demanding repair work on the villa and some compensation as well. My question is: Is he legally entitled to file a civil lawsuit against me beyond the warranty period, which is one year according to the contract? Please advise.
Answer: In the contract, the location, the kind of work, its quantity, the way it should be performed and the duration of work must be described and the remuneration fixed. According to Article 878 of the civil transactions law, the contractor shall warrant the results of his work against prejudice or loss — whether or not caused by his or her trespassing or negligence. The owner (counterparty) has the right to file a case against the contractor within three years from the occurrence of the damage or discovery of defect, according to Article 883, which says ‘Court action on the warranty may not be heard after three years from the occurrence of the destruction or the discovery of the defect’.
The defects in the contracting job may be of two kinds: Defects that require simple repairs and serious defects endangering the solidity and security of the structure. The warranty in case of simple repairs ends by the end of the duration mentioned in the agreement and as a contractor, you are not responsible for any repair work after the expiry of the one-year agreed term.
The warranty in case of serious defects endangering the solidity and security of the building extends for ten years so that ‘If the object of the contract was the erection of buildings or other fixed constructions that the architect had designed, to be executed by the contractor, under his or her supervision, then they shall be jointly liable for a period of ten years or a duration as agreed upon to indemnify the owner against total or partial destruction of the building or fixed constructions and for every defect endangering the solidity and security of the structure. All this unless the two contracting parties agreed that the construction was meant to stay for less than ten years. This obligation to indemnify shall remain in effect even if the defect or the destruction is due to a defect in the ground itself and even if the owner authorised the erection of such a defective building or its construction. The ten-year period shall start from the time of delivery of the work’ (Article 880). Any clause tending to exonerate or limit the warranty of the contractor or the architect shall be void (Article 883).