The Forfeiture of the Mother’s Custody upon Her Remarriage: Between Jurisprudential Reasoning and Legal Characterization – An Analytical Applied Study in the Libyan Judiciary

The Forfeiture of the Mother’s Custody upon Her Remarriage

Abstract

This research addresses the legal and juristic predicament of the forfeiture of maternal custody upon remarriage, a contemporary issue with profound judicial implications for family stability. The study aims to analyze the underlying rationale (ta’lil) behind the requirement that a female custodian remains unmarried. It seeks to answer a central question: Is this condition a purely devotional ruling (hukm ta'abbudi), or is it a utility-based ruling (hukm maslahi) that hinges on its rationale—namely, the protection of the child’s best interests? Furthermore, the research examines the alignment of the legal characterization in the Libyan Law No. (10) of 1984 with the objectives of Sharia (Maqasid al-Sharia) and the principle of the "Best Interests of the Child."

​Employing a comparative analytical methodology, the study draws upon the juristic opinions of the six major schools of thought, examines the Libyan statutory framework, and analyzes select judicial precedents from the Libyan courts. The findings reveal a fundamental conclusion: the non-marriage requirement is rooted in a merit-based rationale subject to judicial discretion, rather than being a rigid, devotional mandate. Consequently, the study recommends the integration of a flexible evaluative standard in both legislation and judicial practice. This standard would establish the "Best Interests of the Child" as the overriding criterion for determining the continuity or forfeiture of custody, moving away from the automatic revocation of this right.