After separation between spouses, two questions become most pressing: who has custody of the children, and who maintains them? The Personal Status Law set out detailed rules for both, making the child's best interest the compass, and tying maintenance to the payer's capacity and the recipient's need. This guide summarizes the practical provisions.
Custody: protecting and caring for the child
Custody (hadanah) is the protection of one who cannot care for themselves from what harms them, raising them and tending to their interests, including education and medical treatment (Article 124). It is therefore broader than merely "living with one parent."
Who is entitled to custody? The statutory order
While the marriage subsists, custody is a duty of both parents together. If they separate, it belongs to the mother, then to whoever is next entitled in the following order (Article 127): the father, then the maternal grandmother, then the paternal grandmother, then the court decides what is in the child's interest. The court may depart from this order based on the child's interest.
Conditions for the custodian
A custodian must (Article 125): have full legal capacity, the ability to raise, protect, and care for the child, and be free of serious contagious diseases. The law added two conditions depending on the custodian's gender (Article 126):
- If the custodian is a woman: she must not be married to a man who is a non-relative (ajnabi) of the child, unless the child's interest requires otherwise.
- If the custodian is a man: he must be a maḥram relative of the child if the child is female, and a woman fit for custody must reside with him.
Leaving the marital home does not forfeit custody
If the mother leaves the marital home due to a dispute or otherwise, her right to custody is not forfeited for that reason, unless the child's interest requires otherwise (Article 133).
When does the right to custody lapse?
The right to custody lapses in certain cases (Article 128): the absence of one of the conditions; the custodian relocating to a place where the child's interest is lost; or the entitled person's silence in claiming custody for more than a year without excuse — unless the interest requires otherwise. A person whose right has lapsed may request it again if the cause of lapse is removed (Article 130).
Traveling abroad with the child
The law regulated travel with precise controls (Article 129):
- If the custodian is a parent: traveling abroad with the child for more than ninety days per year is not permitted except with the other parent's consent.
- If the custodian is not a parent: travel for more than thirty days per year is not permitted except with the consent of both parents, or one of them upon the other's death.
Visitation and the end of custody
If the child is with one parent, the other may visit them, have them visit, and accompany them as they agree, and the court decides upon disagreement (Article 134). When the child reaches fifteen, they may choose which parent to live with, unless the interest requires otherwise, and custody ends when the child reaches eighteen (Article 135).
Maintenance: a right assessed by need and capacity
Each person's maintenance is from their own wealth, except the wife, whose maintenance is on her husband even if she is wealthy (Article 44). Maintenance includes food, clothing, housing, and basic necessities according to custom (Article 45), and is assessed considering the recipient's condition and the payer's means (Article 46).
The wife's maintenance
Maintenance is due to the wife by virtue of the valid marriage contract if she makes herself available to her husband, actually or constructively (Article 51). Her right to it lapses only by payment or release (Article 52). But it lapses if she withholds herself from her husband, or refuses to move to the marital home or to travel with him, without lawful excuse (Article 55).
As for the divorced woman, a woman in the waiting period of a revocable divorce has maintenance until her waiting period ends, while a woman in an irrevocable divorce has maintenance only if pregnant, until she delivers (Article 53).
Children's maintenance
The father alone bears the maintenance of a child who has no wealth, if he is wealthy or able to earn (Article 58). It continues for a son until he reaches the point where his peers can earn, and for a daughter until she marries. If the father is absent or insolvent, the mother maintains the child if she is able, and it becomes a debt on the father, recoverable by whoever spent it if they intended to recover (Article 59).
Ongoing maintenance is a preferential debt
Ongoing maintenance for the wife, children, and parents is due from the date the claim is filed, and is a preferential debt taking priority over other debts (Article 49). The court may order temporary maintenance for the entitled person while the case is pending, without the other party present (Article 50).
Changing maintenance as circumstances change
Maintenance may be increased or decreased as circumstances change, but a claim to increase or decrease is not heard before one year has passed from the maintenance ruling, except in exceptional circumstances the court appreciates (Article 48).
Conclusion
In custody, the governing standard is always the child's interest, and the statutory order is not rigid — the court may depart from it for that interest. In maintenance, the rule is that it is assessed by balancing the recipient's need against the payer's capacity, and it is a right that lapses only by payment or release. Knowing the deadlines (such as the one-year window for maintenance-modification claims, and the lapse of custody by a year's silence) may decide the outcome of your case.
How does LEXIUM help?
We represent you in custody, visitation, and child-travel actions, claim or modify maintenance to match changing circumstances, and prepare the documents that strengthen your position. Our goal is a solution that protects the children's interest and safeguards your rights at once.
Disclaimer: This content is general and informational and does not substitute for legal advice tailored to your case. The provisions above are based on the Personal Status Law and its regulations.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. See our full disclaimer.