Law enables the separated wife  for a temporary housing if the divorce is revocable

Law enables the separated wife for a temporary housing if the divorce is revocable

2018-10-18 10:34:00

Baghdad/Inas Jabbar

Law of the right of divorced wife to housing No. (77) of 1983 was passed and named "the right to housing". This law enables the divorced wife to house  at the husband's expense to prevent her from the risk of homeless after  occurring the divorce but law requires that the divorce must be revocable or the wife obtains the judicial separation.

The judges competent in personal status cases consider the providing the housing for the wife after the divorce is a  temporary  protection till providing shelter and reorganizing her life. Many of people think that the housing of wife is permanent right   or the divorced  husband must provide the house or must pay the rent allowance for whom doesn't own real estate.

Mohammed Rajab, judge of the Alkarkh Personal Status , said that the law of housing wife is a right in rem  and derivatives of the ownership right. It is a right which authorized the owner and his/her family to live in a real estate which is owned by other and it is established by Iraqi lawmaker in Articles 1261-1265 of Iraqi Civil Code. However, the Real Estate Registration Act did not regulate it so that the possibility to arrange is impossible on the ground. The dispositions of  real estate as it is known is not valid unless they are registered  in department of real estate but the latter refused to register since the producers of registration are not regulated by law." He pointed out that the right in rem has reasons, conditions and solutions and law has found some of these solutions.

Regarding to circumstances and requirements of the wife's entitlement to this right, Rajab stated that the wife will entitle this right if the divorce is revocable or  it is the judicial separation. He pointed out that the housing right will not be entitled if the divorce is irrevocable or before having legal sexual intercourse.

In relevant to the producers , the judge of Personal Status Court reported that the court usually asks the divorced wife if she desires to live in the housing right and also the court doesn't rule automatically before knowing the wife's desire . This must be detailed in the verdict and in granting right.

About the conditions and requirements of the housing that is  determined for the wife , Rajab  pointed out  that the house must be owned fully or part of it (joint ownership)or be rented by the husband to the wife before occurring the divorce.

Rajab added that if the wife requests the right of  housing, she shall be entitled to  this right for three years since the decision has acquired the decisive degree but if this house is sold or is evacuated , it won't pay a material consideration that means rents .

He also mentioned that if the wife lives in rented house, the husband shall pay the rent for three years that means the period of her residence in the house.

the judge mentioned other detail which is "if the wife owns a house, she will not live in the husband's house. The main objective of this law is to harbor the wife who doesn't own a house after the divorce.

Jabber Aljabery , judge of Personal Status Court added that the law obliges the husband not to dispose of or to convey the ownership of the  real estate by sell  or evacuate it for six months if it is owned. Her legal right would be defeated if the husband sold it a year before the occurring of the divorce and she can live in just for six months.

He emphasis that the wife shall not claim  the housing if the divorce occurs  due to the adultery or upon the agreement between the two parties.  

One of the cases or issues is tried by the court and translated  law into reality  , the judge said , the husband delivered the hired house to the owner and he does not own a house , in this case it is difficult to carry out the right of housing and the case can be referred to Court of First Instance.

He also mentioned other case "the husband had sold the house before the period of six months and this means the wife has right of  housing  but the recent owner destroyed the house so that there is no house to live.

Aljabery stated that the wisdom of passing law of housing right  for the divorced wife is to provide her a period of time, to provide the a proper   living condition , shelter and also to deter the husband. Finally,  he pointed out that the law is a temporary protection for three years."  

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