Artikel

Blik op het Algerijnse familierecht

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Abstract

On Algerian family law – 1. After eighteen years of incubation and reflection, the Socialist Algerian Republic has adopted a „code de la familie”. The code purports to be a compromise between tradition and modernism. All things considered, modernism is often limited to terminological details instead of fundamental innovations. 2. The code petrifies age-old traditions. For all matters not regulated in the code, the legislator refers to classical Muslim law (whether to Muslim law in general or to the Malekite school alone is a question to be resolved by the courts). Just like hundreds of years ago, the code is built around three cardinal points: the superiority of married men, the inferior position of women in general and the effective protection of the legal and biological family. Like all Muslim societies, the Algerian one is dominated by men. One of the salient features resulting from this lies in the possibility of polygamy. Polyandry is still forbidden. 3. The inferior position of women does not mean they are mere objects (res). They are by all means persons, but of a lesser quality: they are not allowed to marry without the assistance of their patrimonial tutors; as witnesses they are worth half a man; they are not permitted to leave the house without the husband’s consent, etc. 4. The protection of the legal and biological family is organized very carefully. This aspect of the code is one of the concerns of Algerian family law. This leads to the extremely open attitude in matters of affiliation. Every child born within a marriage is given — as far as possible — the status of a legal child. This open-mindedness is in accordance with tradition, although a touch of modernism is brought in by setting aside the theory of the child fallen asleep in the lap of its mother. This theory permitted to give the child a legal status although it was born years after the dissolution of marriage. The protection of the legal biological family also leads to the prohibition of adoption, legitimation, etc. 5. Confronted with the application of Algerian family law Belgian judges too easily put aside this foreign law, invoking the notion of international or Belgian public order. In other cases they rob Muslim legal notions of their traditional content and replace them with Belgian law (alimentation). By acting in this way, Belgian judges show a remarkable shortsightedness.

How to Cite:

Van Mensel, A., (1985) “Blik op het Algerijnse familierecht”, Tijdschrift voor Sociale Wetenschappen 30(3), 175–223. doi: https://doi.org/10.21825/tvsw.94904