Kuwait Court of Cassation principle number 27

Summary: - The father is obliged to pay the rent for the custodial residence of his child in custody unless the female custodian owns a residence in which she lives or has been allocated accommodation for her residence. - The female custodian's performance of custodial duties requires that she and the child in custody occupy one residence. - Meaning of ownership. Where the employer for whom the female custodian works undertakes to house her and allocates a residence in which she lives, or a cash allowance is paid to her in lieu of the rent for housing. Effect thereof: she bears no housing rent. The allowance substitutes for that which it replaces, namely provision of a residence for her accommodation. Combining both is impermissible. Reason therefor. Payment of a housing allowance is in lieu of its allocation in kind. Her receipt of a housing allowance precludes claiming housing rent from the appellant. The challenged judgment's departure therefrom. An error in applying the law requiring its cassation. Rule: It is established from the papers that the respondent acknowledged at the hearing of 25/3/2013 before the Court of Appeal that, following her divorce from the appellant, she receives a housing allowance from her employer of two hundred dinars monthly. Article 198 of Law No. 51 of 1984 concerning personal status means that the father is obliged to pay the rent for the custodial residence of his child in custody unless the female custodian owns a residence in which she lives or has been allocated a residence for her accommodation. Ownership in this context means ownership of the property and its usufruct, or ownership of the usufruct alone. Consequently, if the employer for whom the female custodian works undertakes to house her and allocates a residence in which she lives, or a cash allowance is paid to her in lieu of housing rent, she thereby bears no housing rent, because the allowance substitutes for that which it replaces, namely provision of a residence for her accommodation. The two may not be combined, so payment of the housing allowance is in lieu of its allocation in kind, and her housing need is thereby met. The female custodian's performance of custodial duties requires that she and the child in custody occupy one residence. Accordingly, her receipt of a housing allowance precludes her claiming housing rent from the appellant, and her claim against him for it constitutes enrichment without a Sharia or legal basis. Since the challenged judgment departed from this view by awarding rent for a custodial residence, it erred in applying the law, requiring its partial cassation in this respect.