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Rights of the Divorced Wife

Divorce is the dissolution of a valid marriage contract at the will of the husband or his representative using a special expression in accordance with the provisions of article 104 of the personal affairs law.

The divorce is of two kinds: a revocable and irrevocable divorce.725016

  • The revocable divorce does not annul the marriage before the completion of the Iddah period.
  • The irrevocable divorce is annulled immediately.

The wife has rights pertaining to the divorce from her husband, including the Iddah, custody, alimony for the child and residence, conciliatory payment, the fees for breastfeeding, servant fees, vehicle price, and fees for drivers as is done by custom.

 

First: Iddah

 

The Iddah is the period when the women is required to wait for the marriage to be annulled. Waiting refers to waiting for the expiration of the period for avoiding getting married for a certain period of time to make sure that the woman is not pregnant. This also allows the divorced husband to take back his wife if the marriage is revocable or to maintain the right of the pregnant woman if divorce was completed during pregnancy.

 

Provisions of Iddah:

 

The divorced women – as well as those whose marriage contracts were annulled due to termination reasons such as the lack of fitness in a specific matter – are required to refer to their menstrual period.

 

The divorced woman shall wait for the completion of three menstrual periods, unless she was pregnant. If she was pregnant, then her Iddah shall end upon her giving birth. If she was not pregnant and does not have a menstrual period, due to her young or old age, then her Iddah period shall be three months.

 

The shortest term for a woman’s Iddah to end is sixty days by considering that the longest menstrual period is ten days and the shortest term between these periods is fifteen days. Thus this term is for three menstrual periods and the said term was established in the law in article 155.

 

The law stipulated in the same article (155) that the term of three months, which is the Iddah period for the divorced woman who does not have a menstrual cycle due to her young or old age, shall be equivalent to ninety days.

 

The Iddah period shall expire with the expiration of the said term. If the woman shall not know of the divorce or death, she is not required to know of its expiration.

 

Based on the above, if the man shall divorce his wife and then denied the same, but the divorce occurred and the judge shall confirm separation, then the iddah term shall commence from the divorce term rather than from the separation term.

 

Concerning alimony, both, the irrevocable and revocable divorces, require the payment of alimony of all kinds to the divorced woman. If the divorced woman was pregnant, she shall also be due residence and personal use alimony based on agreement.

In evaluating the alimony, the condition of the husband shall be taken into consideration. The alimony shall be considered a debt from the man from the date of its being due. The said debt is strong and shall not be dropped save by payment and fulfillment thereof or by discharge therefrom.

The divorced woman in iddah shall have the right to alimony unless she shall remain in her husband’s house. If she shall leave then she shall be considered as violating the law and her right to alimony shall be dropped as she shall be considered as failing to wait the iddah period and waiting for the benefit of her husband. The same applies if she shall leave and then was locked up.

 

 

Return of the divorced wife to the husband:

 

Allah said that: {And their husbands have more right to take them back if they want reconciliation}.

 

In accordance with articles 149, 150, 151, 152, 153, and 154 of the Kuwaiti personal affairs law, the husband in article 149 “shall have the right to reconcile with his wife who he divorced a revocable divorce during the iddah term by saying or doing the same. This right shall not be dropped save by extinguishing the same.”

 

Article 150 – 1 has as condition for reconciliation by saying the following:

  • That the same be completed;
  • That the same be before two witnesses: two men, one man and two women, or an official declaration;
  • That the wife informed of the same;
  • The writing is considering one from reconciliation by saying

 

Article 151 stipulated that “if divorced man shall claim that his right to reconcile remained due to the iddah referring on the menstrual period and the divorced woman shall deny the same then she shall prevail by oath if it is possible based on the term that the Iddah period expired.”

 

Article 152 stipulated that “the woman who is divorced a revocable divorce becomes divorced upon the expiration of the Iddah without reconciliation.”

 

Article 153 stipulated that “the divorced man may marry the woman he divorced by minor irrevocable divorce during the iddah period or after with a new contract and dowry.”

 

Article 154 stipulated that “major irrevocable marriage bans marriage unless the conditions set forth in article 22 are met.”

Second: Conciliatory Payment

 

The conciliatory payment refers to a payment given to the wife after marriage for helping her as Allah said {And for divorced women is a provision according to what is acceptable}. The said amount is evaluated based on the financial condition of the husband as Allah stated that {But give them compensation – the wealthy according to his capability and the poor according to his capability according to what is acceptable. This is a duty upon the doers of good}.

 

Article 165 of the Kuwaiti personal affairs law stipulated that “a) if the marriage shall be ended validly after marital relationship, the wife shall be due – other than her Iddah alimony – a conciliatory payment that shall not exceed the alimony of a year based on the financial condition of the husband. It shall be paid to her in monthly instalments upon the expiration of the Iddah period unless the parties shall agree otherwise in the amount or means of payment.

 

  1. b) shall be exempted from the previous clause:

– Divorce due to lack of alimony due to the failure of the husband to do so;

– Separation due to damage if the same was from the wife;

– Divorce with the approval of the wife;

– Termination of the marriage at the request of the wife;

– Decease of one of the spouses.”

 

Third: Rights of the Divorced Woman regarding Children

 

  1. Establishment of family ties after separation:

 

If separation between the spouses shall occur after marital relationship:

 

  • Either the separation shall be completed due to revocable divorce:

 

Based on the same, if the woman shall give birth during the iddah term, then the family ties shall be established as marriage was still valid. If she shall give birth after the expiration of the term or after her acknowledgement of expiration thereof, the family ties shall be established if she shall give birth within less than six lunar months from the date of expiration or declaration.

 

  • Either the separation shall be due to irrevocable divorce:

 

In this case, if the divorced wife shall not acknowledge the expiration of the iddah term, the family ties shall be established if she shall give birth within one solar year (365 days) from the date of divorce (article 169). The pregnancy shall be considered as occurring during marital relations based on the law which relied on the longest pregnancy term.

 

If the divorced wife shall acknowledge the expiration of the iddah period, then family ties are established if she shall give birth in less than six lunar months from the time of acknowledging the expiration of the iddah term and less than one solar year from the time of the irrevocable divorce (article 169) as the same presents her lying about the declaration of expiration of her iddah period.

Fourth: Custody

 

Custody is the raising of children by those who have the right to do the same duly.

 

Right to custody:

 

Article 189 stipulated that “a) the mother has the right to custody, followed by her mother if she was sick, then the maternal aunt, then the maternal aunt of the mother, then the paternal aunt of the mother, then the grandmother of the father, then the father, then the sister, then the paternal aunt, then the paternal aunt of the father, then the maternal aunt of the father, then the daughter of the brother, then the daughter of the sister, then the brother, then a mother then a father in all.

 

  1. b) If none of the above parties who have the right to custody are available, then the custody right shall be transferred to the chosen guardian, then the brother, then the paternal grandfather and then the material grandfather, then the son of the brother, then the uncle, then the son thereof, i.e. first the brother then the mother then the father when the same is possible.

 

  1. c) if those who are due custody shall be equal, the judge shall chose the one who is best for the party under custody.”

 

The party due custody is required to meet the following conditions:

  1. They shall be adults, with full mental capacity and trustworthiness, ability to raise the party under custody, capacity to maintain his/her health and morals.
  2. The custodian shall be a mahram for female children and shall have capable female family members who can undertake custodianship.

 

Loss of the right for custody:

 

Article 191 stipulated that “if the female custodian shall marry a non-mahram to the child under custody and they shall have a marital relation then custodianship shall be lost.

 

If the party who has the right to custody shall not exercise the said right within one year without valid reason after being aware of acquiring the said right shall lose the right to custody. Claiming ignorance of the matter in this case shall not be considered as valid reason.

 

The non-Muslim custodian shall have the right to custody over a Muslim child until he shall understand religion or it shall be feared that he/she shall not be acquainted with Islam and if he shall not understand religion.

 

In all cases, the party under custody may not remain with the said custodian until the age of seven.

 

The right to custody shall not be lost by termination; rather it shall be stopped due to the reasons therefor and shall be regained upon the termination of the said reasons.”

 

Expiration of Custody:

 

Article 194 stipulated that “the custody of women over the male child shall expire upon his maturity and for the female child upon her marriage and entry into marital relations”.

 

 

 

In addition:

 

  • The custodian shall not have the right to travel with the child under custody to another country for residence save with the permission of his parents or guardians.
  • The parent, whether the father or others, may not travel with the child under custody during the custody period save with the permission of the custodian.

 

Fifth: Alimony for the child under custody and establishment of the residence of the female custodian

 

The female custodian shall have the right to obtain alimony as well as residence fees.

 

The party who shall be required to pay alimony shall pay the fees for the residence of the custodian unless the female custodian has a residence to live in or an allocation for her residence.

 

The female custodian shall not be due a custodian alimony if she was the wife of the father or deserves alimony therefrom or during the conciliatory payment period granted to the custodian from the child’s father.

 

Sixth: Fees for the Custodian

 

The female custodian shall be due fees for custody until the male child shall reach seven years of age and the female child shall reach nine years of age.

 

Seventh: Fees for the Servant

 

If the custodian shall require a servant and the father was in good financial condition, the fees of the servant shall be those of the father as the female custodian receives alimony. The father shall also provide the child with food, clothing and residence and he shall provide his child with a servant if s/he shall require the same and if the father shall be in good financial condition.

Vehicle and driver fees:

 

The Kuwaiti judicial authority established that the trial court shall have the right to evaluate the alimony of all kinds, including the price of vehicles and driver fees based on custom, provided that it shall be established that the husband is in good financial condition and that the custodian and child under custody require the same.

 

 

 

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