Conferences

The family code :

its advantages and disadvantages

Introduction.

The importance of the Family Code is related to the importance of the family itself. It is the Family Code that organizes all the injunctions that are related to the family, which is the core of the society. The latter’ strength and consistency result from the family’ strength and unity, and its weakness and collapse result from the family’s break down and split.

Since its issuing[1], the Family Code witnessed a divergence in opinions. There are some who see the obligation to keep it as it is because of being one of the gains that consolidates the Algerian legal system, and being derived from the Islamic Charia. Others see the obligation of its abrogation being a law that does not fit this time[2], and there are others who emphasized on the necessity to enrich and to ratify some of its articles.

As I believe in the rightness of the last opinion, I will study the most important advantages that it includes in order to corroborate them, and the most apparent disadvantages that must be handled in the coming ratification.

I. The family in Islam.

Islam considers and gives much importance to the family due to its significant role in the society. Among the signs of this significance, we mention the followings:

¨                Demonstrating the sanctity of the marital relationship and considering it as a sign among Allah’ signs. Allah the Great said: «And from His signs is that He created from yourselves your wives, that you find serenity with them, and He has set between you affectation and mercy. Surely in this are signs for people who reflect»[3].

¨                Demonstrating men’s guardianship and responsibility in the family. It must be a consultative and not an authoritative one. Allah the Great said:

« Men are the supporters of women because of what God has bestowed on the one more than the other, and for what they have to provide (for them) from their resources…»[4].

¨                The establishment of balance between the common rights and duties, and the assertion of children’s rights. Allah the Great said: «…And women have rights equal to the obligation on them, in all fairness…»[5].

He also said:

 « And the (divorced) mothers shall suckle their children for two years fully, if the fathers wishes to make complete the term of suckling, the father, in the fair known way, shall be responsible for their maintenance and clothing, no soul is to be burdened with more than it can bear, no mother is to be harmed because of her child, nor father because of his child…»[6].

« O you who believe! Save yourselves and your families from a fire whose fuel is mankind and stones, and over which are angles stern and strong, they do not disobey God in what He commands them, and do as they are commanded»[7].

¨                The establishment of ways and means to solve marital problems. Allah the Great said: «…But those women in whom you fear recalcitrance, admonish them, then if they persist, forsake their beds, and if they still persist, hit them in gentle manner (in no physical harming). But if they return to obedience do not take punitive measures against them…»[8].

He also said: «And if you disunity between them, then send an arbiter from his side and an arbiter from her side, if they wish for reconciliation God will effect harmony between them. Surely God is All Knowing, all Aware»[9].

The prophet-may peace be upon him- said: «A believer man should not loathe a believer woman. If he hates one of her manners, he will be satisfied by another»[10].

¨                                     The Islamic Charia arranges the matter of divorce and it asserts the rights of the divorced women. Among the texts that affirm this, we mention the followings:

The Almighty Allah said:

«And divorced women must wait for a trial period of three menstruations, and it is lawful for them to hide what God has created in their wombs, if they believe in God and the Last Day. And their husbands are best entitled to take them back in that period, if they both desire reconciliation…»[11].

« A divorce is only to be affected twice, then either stay together with honor or separate in kindness, and it is not permissible for you to take from women any of that which you have given them, unless both fear that they would dishonour the marriage bond in violation of the bounds set by the God. But if you fear that they may not be able to abide by the bounds set by God, there is no blame on either of them if she returns what has been given. These are the bounds set by God, so do not violate them, and if any do violate the bounds ordained by God, such are the evildoers»[12].

«And if you divorce women, and they complete the term prescribed, then either retain them in kindness or release them in kindness, but do not take them back merely to harass them, and whoever does that harms his own will…»[13].

«…Do not expel them from their houses, nor shall they leave unless it is proven that they have committed an indecency…»[14].

« And for the divorced woman a fair gift is a duty on the pious»[15].

 It was reported that Abdul Allah bnu Omar-may God be pleased with them- divorced his wife and she was in her menstruation period. Then, Omar Ibn El Khatab asked the prophet-may peace be upon him- about that. The prophet said to him: « Order him to take her back, and wait until she purifies, and menstruates and purifies. Then, if he wants, he divorces her before having sexual intercourse with her»[16].

 Aicha-may God be pleased with her- reported that the prophet-may peace be upon him- said: « There is no divorce and no manumission when you are in a fury»[17].

All these legal texts (Koranic verses and Ahadith) affirm the great attention and concern that Islam gives to the family. Indeed, Islam protects the family and preserves its entities so that it can achieve its objectives[18] and performs its role.

II. The Family in the International Charters.

The international charters gave considerable concern to the families’ matters. They issued rules that ensure and guarantee the protection of the family.

·                   The International Declaration of Human Rights[19], in its 16^th article, declares that:

1- Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2- Marriage shall be entered into only with the free and full consent of the intending spouses.

3- The family is the natural and the fundamental group unit of society and is entitled to protection by society and the state [20].

·                   In its 19^th section, the International Declaration of Human Rights in Islam[21] stipulates: «The right to build up a family:

a) Marriage -within its Islamic frame- is a right for all mankind. It is the legal way to set up a family, to procreate children and to chasten the self.

b) Each of the spouses has the right to be respected by the other. Every one has to appreciate the other’s feelings and situations in cordial and compassionate manners».  

·                                        The first article of the declaration

related to the social and legal principles that concern the protection of children[22] stipulates: «Each country must give priority to the protection of the family and the child».

·                        The preamble of the Child’s Rights[23]

Convention stipulates: « Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community».

III. The family in the Algerian Constitution and laws.

a) In the constitution of 1996, article 58 stipulated: « The family gains protection from the State and the society».

b) In laws: The family code- and some other laws[24]- takes an interest in the matters of the family. The second Article identifies the family as follow: "the family the core of the society, and it consists of persons who are united by marital and kinship relationships".

Concerning the Penal Code, it claims the protection of the family against felonies. There is a text in the second chapter entitled: felonies and offenses against the family and the general ethics[25] (moral standards).

IV. The legislations issued before the issuing of the Family Code.

- Law N° 57/777: Among the points that it includes, we mention: the registration of the contractions of marriage which happened before the establishment of this law and which are in conformity with the Islamic Charia.

- Ordinance N° 59/274 that identifies the pillars of the contraction of marriage.

- Ordinance N° 63/224 that identifies the eligibility of marriage, and it stipulates the obligation of registering the contractions of marriage that were not registered.

V. The Family Code: its advantages and disadvantages.

A) The advantages: It is possible to enumerate the advantages of the Family Code in the following points:

1- The reference of the Family Code[26] to the Islamic Charia: This is the most important advantage of the Family Code. In fact, the Algerian legislator relied basically on the Islamic Charia. In the preamble of the introductory bill, it was mentioned that « in drafting these texts, the committee relied on the following basic sources:

- The Noble Koran.

- The Sunna of the prophet that is confirmed by the Ulemas of Hadith.

- Unanimity (Idjmaâ).

- Analogy (Qiyas).

- Diligence (Idjtihad).

- Fiqh (religious jurisprudence) according to the four doctrines and others in some matters.

2- The Family Code keeps abreast with the customs of the Algerian society. It does not contradict what the members of the society concerning the rules and the customs agreed on. The word "Fâtiha" that is mentioned in the sixth article is an example of this. The aim of its utterance (Fâtiha) is to declare the contraction of marriage that happens in conformity with the Islamic Charia. In fact, people were used to utter the Fâtiha (the opening of the Book) after the legal contraction is finished. Therefore, the contraction of marriage is called Fâtiha.

3- The Family Code contains and comprises most of the rules designed to the family. They were drafted with an accepted warding that facilitates for the judges their application, and for the Man of Charia and law the resort to them.

4- The Family[27] Code resorts to the injunctions of the Islamic Charia when there is no mentioned text about a given matter.

- Article 222 stipulates: « Whenever there is no mentioned text about a given matter, this law resorts to the Islamic Charia». This text permits for the judge to refer to the injunctions of the Islamic Charia without limiting a specific Fiqh doctrine.

B) The disadvantages.

The Family Code contains some defects in some of its articles, which need some regulations and additions. Among these articles we mention:

1- Article 6 stipulates: «…The Fâtiha and the betrothal are governed by the same rules that are mentioned in article 5».

The Fâtiha should not be governed by the same as betrothal because of the difference between the two proceedings.

Since betrothal is a promise for marriage, the proceeding of "Fâtiha" is taken for marriage according to the custom, and it needs only registration at the level of the Civil Status. This is what the law affirms in its 22^nd article that stipulates: «Marriage is proved by a paper issued by/ from the civil register. Failing that, a verdict if it fulfills its pillars stated in this law…».

The judicial authorities were judging likewise before issuing the Family Code. As an example of this, the decision of the High Council (the supreme court nowadays) which came out on November 22^nd, 1982 concerning the affair number 28784 in which the following statement is declared: «A marriage is considered right and legal if it fulfills its pillars even if it is not registered in the Civil Status register, and it takes effect ».

2- Article 7 deals with the eligibility for marriage[28]. It stipulates: «Man is eligible for marriage if he reaches 21 years, and the woman is apt of marriage if she reaches18 years. The judge has the right to license marriage in order to realize an interest or in case of necessity even if the above mentioned conditions are not respected».

The following points are to be made on this article:

1- This article does not demonstrate the legal impacts that result from the marriage that happens before the two spouses or one of them reach the required age.

2- It missed out the retributions that are to be set against the one who contravened what it contains.

3- It missed out the least inferior age that the judge should not exceed when he licenses the marriage, in case the two spouses or one of them did not reach the legal age[29].

¨                The law number 63/224[30] includes the following articles:

1- Article 1 stipulates: «The man who has not reached eighteen years old and the woman who has not reached sixteen years old have no right to contract their marriage». In spite of this, the chairman of the court is granted the right to exonerate the spouses of the age condition if he has strong motives, and with the consent of the government representative.

2- Article 2 stipulates: «A penalty is inflicted on the officer of civil status or the marriage officer and the two spouses along with their legal representatives, and on all those who contributed in their marriage without considering the condition age. The penalty is of fifteen days to three months of present, or a payment of four hundred to one thousand Dinars or both of them at once».

3- Article 3 stipulates: «It is considered as invalid each marriage that is not consummated and is registered with non conformity to what the first article stipulates. It is possible for the spouses, the ones who have interest in this marriage or the general authorities to appeal against this marriage. But if marriage is not consummated, it is allowable only for the husband to appeal against it»[31].

4- Article 4 stipulates: «In case the two spouses or one of them did not reach the required age and their marriage is contracted, it is not possible to appeal against it in the following two cases:

- If the spouses reached the legal age when registering their marriage.

- If the wife did not reach the legal age and she is pregnant».

By comparing the Family Code with what is issued in law number 63/224, we deduce the following points:      

1- Article 7 of the Family Code conceals the verdict issued in article 1 of the Law number 63/224.

2- It is permissible to apply the verdicts issued in articles 2, 3 and 4 because there is not their corresponding in the actual Family Code. In addition, there is no text that abrogates these verdicts. Article 223 stipulates the concealment of the inconsistent verdicts only[32].

3- Article 30 stipulates: «…It is forbidden to marry two sisters at the same time, or a woman and her aunt  (her father’ sister or her mother’s one) or her aunt by suckling.

It is possible to reformulate this article as follow: «It is forbidden to gather between two forbidden in marriage».

4- commentary on articles[33] 09, 32 and 33: The Algerian legislator identifies the pillars of marriage in article 9. They are: the consent of the two persons who intends to marry, the woman’s tutor, two witnesses and a dowry. Normally, the legislator should add that marriage became invalid[34] if it lacks one of the above-mentioned pillars as it is mentioned in article 32 and 33.

According to article 33, the contraction of marriage became invalid if it lacks more than one pillar. But it does not mention "the consent of the two persons".

What may be understood from this article is that the only pillar that makes the contraction of marriage invalid (in case of its absence) is the consent of the two persons who intend to marry.

5- Article 31: the following section should be added to it «It is not permissible for a Muslim to marry an atheist».

6- The sections 2 and 3 of article 39 are to be concealed because their contents are mentioned in article 36.

7- Commentary on articles 49 and 50[35].

Article 49 stipulates: «Divorce can be proved only by a verdict after many attempts of reconciliation that should be made by the judge within three months». This article restricts the means of proving divorce to the verdict that is issued by the judicial authority. This implies that no legal value is given to the divorce that is pronounced by the husband.

Article 49 contradicts article 50 that stipulates: «The return back of the woman to her husband during the period of reconciliation does not require a new contraction of marriage. The latter will be obligatory if she returns back after pronouncing the verdict of divorce».

The word "returns back" implies that the divorce that is uttered by the husband before the issuing of the verdict of divorce is a revocable one.

What can be resulted from applying the two articles is the duality of Idda (Idda it is the prescribed period that the woman should stay at her home when her husband dies or divorces her). This will be apparent in case the husband pronounces divorce and the verdict of divorce is not yet issued. Therefore, the legal Idda starts from the day the husband utters divorce and the juridical Idda begins from the day the judge pronounces the verdict of divorce. In fact, this leads to the appearance of paradoxes and contradictions between the Islamic Charia and the Family Code at many levels.

If we suppose that the husband pronounces divorce on January 1^st , 1999 and a sue for a divorce is made on April 25^th, 1999 (i.e. after the end of the legal Idda), the law limits the period of reconciliation to three months after the lawsuit is issued. That is, if the judge holds a session of reconciliation between the spouses on May 25^th, 1999 and it succeeds, the retuning back of the divorced woman does not require a new contraction of marriage according to article 50. This, in fact, contradicts the Islamic Charia, because after the end of the legal Idda, divorce became irrevocable[36]. So, in such a case, it  requires a new legal contraction.

If we consider the supposition above mentioned, the following contradictions are to be deduced:

1- It is legally allowable for the divorced woman to be engaged to another man after the end of her legal Idda, but it is permissible at the judicial level.

2- It is legally allowable to her to get married to another man, but it is not so at the juridical level. Moreover, her husband has the right to bring suit against her.

3- This divorced woman receives her deferred dowry according to the Charia, but the law does not accord her this right.

4- The Islamic Charia does not allow for this divorced woman, if her divorcee dies after the end of her legal Idda, to inherit him. But she can inherit him according to the law because of the non dissolution of the marital relationship at the judicial level.

We may avoid these contradictions through the following statements:

1- The verdict of divorce should be pronounced retroactively to the date the husband uttered divorce.

2- The session of reconciliation that is mentioned in articles 49 and 50 should be related to the legal Idda. Thus, they will be reformulated as follow:

Article 49: « Divorce can be proved only by a verdict after many attempts of reconciliation during the period of the legal Idda».

Article 50: «The return back of the divorced woman to her divorcee during the period of her legal Idda (when divorce is revocable) does not require a new contraction of marriage, but it requires a new contraction and a new dowry if the legal Idda is finished or the verdict of divorce is pronounced».

8- Article 54 which is related to "Khol ’" should be reformulated so that there will be no other interpretation concerning the consent and the non consent of the husband on the matter of Khol’.

9- Article 57 should be reformulated in a manner that makes the distinction between the verdict of divorce and the verdict of the divorce asked by the woman from the judge possible.

In the verdicts of divorce, appeal is not allowable because they are demonstrative (i.e. the role of the judge is only to make divorce official) except what concerns the material aspects, whereas appeal in the verdicts of the divorce asked by the woman from the judge is permissible because they are constitutive (i.e. the judge has the right to pronounce the verdict of divorce on the behalf of the husband even without the latter’s consent).

10- The difference in religion should be added in the article 135 and 138 as an obstacle of inheritance.

11- Article 168 is confined to mentioning only the first type of cognants.  So, the three types should be added to it as it is stipulated in the preliminary project of the Algerian Personal Status Code[37]. 

Conclusions.

On the light of what had been said we deduce the following points:

1- The necessity to enhance the Algerian Family Code.

2- The legislative power should resort to the experts who are specialized in the Individual Status’ matters.

3- The articles that embody divine injunctions must not be amended because they are extracted from firm texts (the Noble Koran and the Sunna).  Therefore, there must be no diligence in the matters that are mentioned in texts. 

4- The necessity to prepare judges specialized in Individual Status.

5- The necessity to issue Procedures Code specific to Individual Status.

 6- The society and the government institutions must take an interest in the family, and care for protecting its entity because the law alone can not make an ideal family, however it is comprehensive.

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