We will examine the modifications made to the family code by ordinance of February 25, 2005, mainly those concerning the conditions of the formation of marriage.
- Novelties
- A) The public prosecutor
The public prosecutor is now a main party in all proceedings seeking to apply the provisions of the family code (art 3).
Its role is to make sure the provisions of the family code in disputes between the spouses is properly implemented. In this respect, the public prosecutor intervenes during the hearing with findings that one of his representatives places in the file.
His role is also to expedite the compulsory registration in civil status of divorce decrees. He is also responsible for transcribing the civil validation judgment of marriage. (Art 22).
- B) Engagement
In our legal system, there is a system of conciliation and coexistence of religious marriage and civil marriage. Although not legally binding, but socially recognized and celebrated at the time of the engagement, religious marriage always precedes civil marriage. The legislator made a point of making the distinction between the engagement, promise of marriage accompanied by the reading of the Fatiha which does not constitute a marriage and the engagement accompanied by the Fatiha in contractual session which constitutes a marriage if the consent of both parties and the marriage conditions (dowry, presence of witnesses and guardian) are met.
a- The engagement Promise of marriage
The engagement as promise of marriage does not constitute a legally binding contract, it is a purely moral agreement, from which can result as Jean Carbonnier says “only a duty of conscience, not a legal obligation ending with marriage”. Either party can give up engagement. If this waiver results in material or moral damage, for one of the parties, compensation may be ordered by the judge who will be seized. But the reluctant fiancé will never be condemned by the judge to give his consent. If the waiver is made by him, he cannot claim the return of the gifts. On the other hand, if it is made by the fiancée, she will have to return non consumed presents which were offered to her, or their value.
b- Marriage – engagement
The engagement accompanied by the Fatiha (religious wedding) in contractual session constitutes a marriage if the consent of both parties and the conditions of the marriage are met (dowry, witnesses and presence of the wali).
If the consummation of the marriage took place before the conclusion of the marriage certificate, the religious marriage will be regularized through a recognitive judgment. (Art 22)
- Marriage
Newly, the drafters of the ordinance defined marriage as a consensual contract between a man and a woman (art 4). They emphasized consent in the formation of marriage. The marriage contract is concluded by the exchange of the consent of both spouses. (art 9).
The marriage contract is not an ordinary contract, since it starts a family, the state of spouse and the legitimization of children.
But now a man can cumulate within the limits of the law (sharia) four successive marriage contracts; it is polygamy, one of the spouses, the husband is in the bonds of a previous marriage.
Society and legislators still admit this institution. Although monogamous marriage is a principle in Muslim law and polygamy an exception, this point of view does not seem to be unanimously accepted neither among our politicians nor among the ulama who must normally have a family policy and be open-minded and embrace modernity.
- A) Polygamy
Polygamy is subject to new restrictions: While recalling the Quran principle of the possibility of taking four wives, the legislator wanted to be more careful by subjecting polygamy to more restrictions. Art 0
The president of the court may authorize the new marriage if he finds the consent of the first wife and the second wife. It is interesting to note that, unlike the 1984 law, the judge will have to verify that the wife has consented to the new marriage, that the proof of the justified reason does exist. For the husband, it is a matter of adding a medical certificate to the file attesting to the woman’s sterility and or her mental illness according to a 1984 circular from the Ministry of Justice addressed to civil status officers and notaries. The judge will then have to determine the applicant’s ability to offer equity and the living conditions necessary for married life.
These dissuasive restrictions could have led the legislator to remove this uncontrollable institution and enshrine monogamous marriage which is a principle in Muslim law. Polygamy is only an exception. Being maintained in the modifications made to the family code, one wonders how with such an institution the sharing of responsibility introduced in marital relationship will be exercised in the many homes that the husband will have. We also wonder how judges would react to the regularization of fatiha marriages which will be used more and more to circumvent the procedure required by article 08 of the law. The fact remains that the new marriage will be terminated before its consumption, if the husband has not obtained authorization. How to prove the second marriage and who must do it, the first or the second wife?
- B) The constituent elements of marriage
- a) Capacity to marry
1) The drafters of the amendments aligned the age of marriage with the age of civil capacity, 19 and over for men and women. The judge may grant an age exemption for reasons of interest (the minor may be pregnant) or if necessary. In this case, the minor spouse who has obtained an age exemption to marry acquires the capacity to take legal action against his spouse as to the rights and obligations resulting from the marriage contract, (art 7). The minor is emancipated by marriage.
It is understood that the father cannot conclude the marriage without the will of his child. personal consent is required. (Art 13) The father cannot force his minor child to marry against his will.
- b) The medical certificate
2) The ordinance obliges the future spouses to present to the notary or the civil registrar a medical certificate dating from less than three months noting the absence of illness or factors contraindicating marriage. (Art 7 bis)
This examination must shortly precede (3 months) the drafting of the marriage contract before the notary or the civil registrar who must note that the two parties underwent the medical examinations and were aware of the diseases or factors of risks they could reveal which contraindicate marriage. It is mentioned in the marriage certificate where the conditions and methods of application are specified, and will be defined by regulation.
The medical examination must inform each of the two future spouses about the affections (contagious or hereditary) from which he could be affected.
Apparently an unfavorable result does not create an obstacle to marriage, so it is understandable that the conscience of the patient or the duty of advice of the doctor will be appealed not to enter into marriage.
The absolute secrecy of the results does not seem to have been taken into consideration since the engaged couple are obliged to give each other communication of the medical findings (have knowledge of the diseases or risk factors which contraindicate marriage). However, pending the regulatory process which must specify the content of the medical certificate to be given to the notary and civil status officer, the latter currently require a certificate of good health.
The council of the government adopted an executive decree on April 12, 2005 laying down the conditions and methods of application of article 07-bis of the law n ° 84-11 of O9 June 1984 modified and supplemented bearing family code.
“The provisions contained in this decree aim to make the establishment of the marriage contract by the notary or the civil status officer subject to the presentation of a medical certificate by the two future spouses. The issuance of the medical document is itself conditioned by the performance of medical analysis and examinations, the results of which are brought to the attention of the two future spouses, thereby reducing the risk of illness or contagious diseases which may constitute a danger for the spouse or the descendants “. (El Moudjahed Thursday April 13).
Presumably, the registrar or notary may refuse to issue the marriage certificate if one of the spouses is not aware of the contents of the medical certificate.
In this respect, they must seek the consent of one or the other and carry it on the sidelines of the marriage certificate.
- c) Consent
1) Also new, The marriage contract is concluded by the exchange of the consent of the two spouses.
The consent of both spouses and in particular that of the wife is given binding force in the conclusion of the marriage contract (art 9). The legislator was anxious to define consent, the latter resulting from the request of one of the two parties and the acceptance of the other expressed in any term signifying legal marriage. (Art 10)
Are validated, adds provision 10, the request and the consent of the disabled expressed in any written or gestural form signifying marriage in language or usage.
It is important to note that the provision which authorized marriage by proxy has been repealed. Consent is exchanged in person and not by an intermediary or authorized representative.
The code recalls that no coercion can be exerted on the female minor placed under the guardianship of the father or other, just as he cannot marry her without her consent. This provision is important because it is a bulwark against forced marriages. (art 13)
The father or a close relative or the judge contract in their capacity as wali, matrimonial tutor the marriage of the minor.
- d) Role of the guardian
By giving force to the consent exchanged by the two spouses, it is no longer the father or guardian who concludes the marriage contract of his adult daughter but it is the latter who concludes it in the presence of her wali, who can be her father or a close relative, or any other person of her choice.
The rewording of Article 11 nevertheless gives rise to a few justified remarks. In addition to the capacity to marry, the dowry, and the two witnesses, the presence of the wali or matrimonial guardian, whose role has changed, is required in the conditions which the marriage contract must fulfill. His presence is therefore compulsory; it is even included as a substantive condition in the conclusion of the marriage contract (article 09). This is why we are entitled to wonder, and rightly so, about the way in which this presence is actually materialized. Can we consider the wali who no longer concludes the marriage of his adult daughter as a third witness?
What we are sure of is that the presence of the matrimonial guardian w materialized on the ground by a signature on the civil status registers at the time of the conclusion of the marriage mitigates the legal capacity of the woman. However, article 40 of the civil code stipulates that “any adult person enjoying his/her mental faculties and not having been prohibited, is fully capable for the exercise of his/her civil rights. The civil majority is set at the age of 19 ”
- c) Proof of marriage
The civil status certificate, that is to say the marriage certificate, is considered as proof of the union. This proof is useful for spouses and for children of the union. Children must prove their parents’ marriage to prove their legitimacy. The provisions of civil status apply to the procedure for registering a marriage certificate. If the marriage has been concluded before the notary, the latter must send within three days to the civil registrar the request to transcribe the marriage. Marriage is proven by issuing extracts from the civil status registry. Otherwise, it is made valid by judgment.
The validation judgment concerns the marriage through fatiha fulfilling the conditions of the marriage which was not registered on time at the town hall. It is transcribed at the request of the public prosecutor.
The marriage certificate is concluded either before a notary or a civil status officer whom the legislator appoints a legally authorized official subject to articles 9 and 9 bis of the code. These articles lay the constituent elements of the marriage contract, however, a remark is imperative. Regarding the dowry, the latter is negotiated before the consummation of the marriage and generally at the request of marriage or engagement. It must be entered on the marriage contract if the latter is concluded before a notary (art 15) whether its payment is immediate or deferred, but it is more difficult to justify or prove it when the marriage is made before the civil status officer. The amount of the dowry is never mentioned before the civil registrar, but the latter will mention it on the marriage certificate. This is why the legislator settles the possible dispute over the payment of the dowry in different ways.
If before the consummation of the marriage, the dowry gives rise to a dispute between the spouses or their heirs and that none provides evidence, it is ruled, under oath, in favor of the wife or her heirs. If this dispute arises after the consummation of the marriage, it is decided under oath, in favor of the husband or his heirs.
It is important to note that the marriage contract drawn up before a notary is a form of protection of women’s rights. The latter may in the marriage contract where, in a subsequent authentic contract, stipulate that her husband will not be polygamous or protect her right to work by committing her husband not to prohibit her from working. (art 19)
- f) Impediments to marriage
In addition to the classic absolute impediments already posed by the 1984 code, kinship, alliance, and breastfeeding, the amendments introduced a new category of temporary impediment (art 30), among which the already married woman, the woman in legal retirement period following a divorce or the death of her husband, the woman repudiated three times by the same spouse, having two sisters for wives simultaneously, and the marriage of a Muslim with a non-Muslim.
Section 31 of the 1984 Act formally prohibited the marriage of a Muslim woman to a non-Muslim man. The new text eases this ban by transforming it into a temporary impediment likely to lead and suggest to the husband of another denomination to convert to the Muslim religion. We find the same mitigation in the nationality code which was modified at the same time as the family code.
The changes made are important since they allow the Algerian woman to transmit her nationality to her child even when the father is from another nationality, and implying from another faith. The foreign husband benefits from the possibility by his marriage to claim Algerian nationality. It is a shy step towards recognizing Algerian marriages with non-Muslims.
- B) Equality in relations between husband and wife
The legislator insisted that the rights and obligations of the two spouses be the same and reciprocal.
- a) The concern to balance the relationships between the spouses has done away with the notion of head of the family and the duty of obedience which the wife owed to her husband and to his family.
The obligations in marriage are the same for each of the two spouses; they range from the safeguarding of conjugal ties and the duties of common life, from mutual consultation in the management of family affairs to the joint protection of children and their healthy education and respect for their respective parents.
Spouses also have the right to visit and receive their parents.
It is a pity that the qualifiers used in the egalitarian relationships between the spouses (mutual consultation, contributing jointly) are not extended to guardianship over children so that the latter is no longer an exclusive right of the father but a right shared by both parents.
- b) Matrimonial property regime
By reiterating the principle of the separation of property, “each of the two spouses retains his/her own heritage“; the legislator has introduced the community regime to acquests. The two spouses may agree in the marriage certificate or by subsequent authentic act of the community of the property acquired during the marriage and to determine the proportions due to each of them. This is what will protect the heritage that the wife will have acquired during the union.
Summary
Conditions of marriage:
Legal capacity of the two future spouses, 19 and over
Dowry
Premarital certificate
Consent of the two future spouses
2 male witnesses
Matrimonial guardian
For the marriage of a minor under the age of 19, a court order authorizing the marriage is necessary and mandatory. The guardian father cannot force his daughter to marry.
Marriage is celebrated by the civil registrar who will transcribe it directly into the civil registers and deliver a marriage certificate to those concerned or can be drawn up by the Notary who will have three days to transcribe the marriage to civil status.
The matrimonial property regime is the separation of property but the future spouses may agree to establish a marriage contract.
[1] Coran sourate 2, versets 236, 237
Sourate 2 verset 241
[2] Tahar Haddad : Notre femme, la législation islamique et la société
[3] L’Islam et la modernité Mariam Monjid
[4] Le juge ne demandera pas le témoignage de deux témoins ayant assisté à la répudiation
[5] Article 57 « les jugements rendus en matière de divorce par répudiation, à la demande de l’épouse ou par le biais du khol’a ne sont pas susceptible d’appel sauf dans leurs aspects matériels »
[6]. Article 53 du code de la famille.
[7]. Mohamed Chérif Salah Bey, Algérie, Législation comparée, Juris-Classeur 1993
[8] « il ne vous est pas permis de reprendre quoi que ce soit de ce que vous leur avez donné__ sauf si les deux époux craignent d’outrepasser les limites fixées par Dieu. Si vous craignez qu’ils ne respectent pas ces limites, il n’y a pas de mal à ce que l’épouse offre une compensation. Telles sont les limites fixées par Dieu. Ne les transgressez pas. Ceux qui transgressent les limites fixées par Dieu, Voila les injustes. » Sourate El Baqara « la vache 229
[9] Ibn Abbés rapporte : L’épouse de Thabit ibn Quays vint trouver le prophète et lui dit/ Envoyé de Dieu, je n’ai rien à reprocher à Thabit dans sa religion ou son comportement mais je ne peux pas le supporter. » Le prophète lui ayant demandé si elle rendrait à son époux le verger qu’il lui avait donné en dot, elle accepta et le lui rendit. Il ordonna donc à l’époux de se séparer de sa femme, ce qu’il fit » rapporté par Al Boukhari. In Encyclopédie de la femme musulmane par 264 tome 5 par Abd el halim abou chouquaa.
Selon le qadi IBN Rochd/ de même que l’homme a reçu le droit de prononcer le divorce s’il déteste sa femme, la femme a reçu le droit de demander la dissolution avec une indemnisation du mari si elle déteste son mari.
[10] Tahar Haddad, Notre femme, la législation islamique et la société
[11] Article 36 du code de la famille
[12] Article 38 et 39 ont été abrogés
[13] Mariam Monjid