The ruling on the condition related to residence and the court’s authority to assess the legality of the residence (a comparative study)

Abstract

Abstract: The ruling concerning the condition related to housing pertains to the wife's right to suitable accommodation. The personal status law strengthens her right to demand that the husband provide housing that is appropriate to her economic and social circumstances. This accommodation can be a room, an apartment, or an independent house, and it is a right established from the date of the marriage contract. The wife is granted this right even during the 'Iddah (waiting period) after divorce or death, but certain conditions apply depending on the type of 'Iddah and the presence of children. The law not only specifies the wife's right to demand housing, but also continues her right to residency even after her 'Iddah has ended, which contradicts some jurists' opinions who believe that housing remains only for the wife and the woman observing 'Iddah. Moreover, Article (39/F3) of the Iraqi Personal Status Law emphasizes the divorced woman's right to compensation, especially in cases of arbitrary divorce, which limits the strength of arguments that oppose the wife's right to housing. Furthermore, the law stipulates that the accommodation must be in Iraq, disregarding life changes and modern means of transportation. The wife can impose specific conditions on the housing within the marriage contract, and the assessment of the availability of these conditions depends on the judge's discretion. If the judge proves the availability of the conditions, the wife must obey. However, if the husband fails to provide the accommodation, the wife has the right to demand separation and alimony. This research focuses on analyzing these legal and Sharia (Islamic law) issues related to housing. © 2023 TUJR, College of Law, Tikrit University