Algeria, Democratic and Popular Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

Under French rule (1830-1962), courts applied Maliki principles in personal status matters and succession (unless parties were Ibadi). Commentators note that course of adjudication and interpretation in Franco-Algerian courts led to distinctive developments in family law. Government issued a Marriage Ordinance in 1959 enacting some Maliki principles. Independence achieved in 1962. Family Code covering personal status and succession enacted in 1984. Article 222 of Family Code specifies the shari’a as residual source of law, thus allowing for selection of appropriate interpretations from any school of law or from original (Qur’an and sunnah) or secondary sources of law.

School(s) of Fiqh

Maliki majority, Ibadi minority; small Christian and Jewish minorities

Constitutional Status of Islam(ic Law)

Constitution adopted 19th November 1976; undergone several amendments. Article 2 affirms Islam as official state religion. 

Court System

Three levels of courts. Daira tribunals are courts of first instance for civil and certain criminal matters. 48 Wilaya Courts in each province organised into 4 chambers constituted by 3-judge panels that must hear all cases; have appellate jurisdiction over lower court decisions in civil suits. Highest level of judiciary is Supreme Court.

Relevant Legislation

Family Code 1984 (no. 84/1984 – amendments currently under discussion)

Notable Features

Marriage Age: 21 for males and 18 for females, scope for judicial discretion if necessity or benefit is established for marriage below that age

Marriage Guardianship: guardian not permitted to marry his ward by compulsion or without her consent, and may not withhold consent if marriage is in ward’s interests as judge is empowered to authorise such a marriage in case of guardian’s opposition

Marriage Registration: obligatory registration governed by Civil Status Code; unregistered marriage may be validated by court judgement

Polygamy: reason for contracting polygamous marriage must be justified and prior notification of existing wife/wives required; any co-wife may petition for divorce on grounds of harm if her consent was not obtained

Obedience/Maintenance: arrears of maintenance normally payable from date that claim is filed, though judge may order payment of arrears on production of valid evidence for period of not more than one year preceding the claim

Talaq: only established by judgement of the court; judgement must be preceded by reconciliation efforts by the judge; wife may obtain a khul’ in return for compensation (not to exceed proper dower) if husband consents

Judicial Divorce: wife may petition for divorce on following grounds: non-payment of maintenance; infirmity preventing conjugal relations; husband’s abstinence from sexual relations for over four months; husband’s imprisonment for over a year for offense that brings disgrace to his family; husband’s absence without provision of maintenance or valid reason for over a year; any legally recognised harm (e.g., relating to maintenance, treatment of CO-wives, etc.); and any grave moral impropriety

Post-Divorce Maintenance/Financial Arrangements: judge may award wife damages if husband found to have abused his right of talaq; no indication of levels of compensation given in the law

Child Custody and Guardianship: divorcée’s right to custody ceases at age 16 for boys (or 10 if she remarries) and until legal age of marriage (18 years) for girls (so long as mother remains single or marries someone within prohibited degrees to the daughter), with proviso that decision to terminate custody is subject to ward’s best interests; full guardianship reverts to mother upon father’s death unless his will provides otherwise

Succession: obligatory bequest for orphaned grandchildren by predeceased sons; also extended doctrine of radd (return) to allow spouse relict to share in residue of estate

Law/Case Reporting System

Law reporting through Journal Officiel.  

International Conventions (with Relevant Reservations)

ICCPR and ICESCR – signature 1968, ratification 1989 with interpretative declaration to common Art. 1, Arts. 1(3), 14, 8, 13(3) & 13(4) of ICESCR, and Arts. 22 & 23(4) of ICCPR

CRC – signature 1990, ratification 1993 with interpretative declarations to Arts. 14(1), 14(2), 13, 16 & 17

CEDAW – accession 1996 with reservations to Arts. 2, 9(2), 15(4), 16 & 29(1) (Initial report 1 Sept. 1998)

Legal History: The Algerian legal system is based on French and Islamic law. Algeria remained under French rule for 132 years, constituting the longest direct European colonisation of any region in North Africa. After a brutal eight-year struggle for independence, Algeria became a sovereign state in July 1962.

Under French rule, courts applied Maliki principles in matters relating to personal status and succession (unless the parties were Ibadi). Commentators note that the process of adjudication and interpretation in the Franco-Algerian courts led to distinctive developments in the area of family law. In 1916, a commission headed by the French jurist Marcel Morand was appointed to formulate a draft code of Muslim law. The draft code, Avan-project de code du droit Musulman Algerien, based mainly on Maliki principles but incorporating some non-Maliki (mainly Hanafi) provisions, was never formally passed into law although it did influence the application and administration of family law in Algeria. The government eventually issued a Marriage Ordinance in 1959, enacting some Maliki principles relating to family matters; the Ibadi minority was initially exempted from the Ordinance. The legislation may have been inspired by the codification of family law in Tunisia and Morocco in 1956 and 1958 under newly-independent national governments. Though the Marriage Ordinance did not introduce substantial changes to family law, there were some provisions based on Hanafi principles. The Ordinance established rules for solemnisation and registration of marriage, raised the minimum marriage ages for both parties, and established certain regulations relating to judicial dissolution and court orders for post-divorce reliefs; its application was specific to those who registered their option for state legislation.

The first Constitution promulgated in 1964 declared Islam the state religion. The new regime also amended the Marriage Ordinance of 1959, repealing or amending certain provisions such as the exemption of Ibadi marital relations from the terms of the Ordinance and the minimum marriage-age. The second Constitution adopted in 1976 reaffirmed Islam as the state religion. Periodic demands for comprehensive codification of personal status and inheritance laws eventually led to a draft code being presented to the National Assembly in 1980. After several years of debate, discussion and protest, the Family Code was enacted in 1984.

Schools of Fiqh: The Maliki school is the predominant madhhab in Algeria. There is an Ibadi minority. There are also small Christian and Jewish minorities.

Constitutional Status of Islam(IC Law): The current Constitution was adopted on 19th November 1976 and has been amended several times, with the last revisions approved by referendum in November and signed into law in December 1996. Article 2 of the Constitution provides that Islam is the religion of the State.

Court System: The judiciary in Algeria is organised into three levels. Daira tribunals (numbering 183 in the late 1980s) are the courts of first instance for civil and certain criminal matters. The 48 Wilaya Courts in each province are organised into 4 chambers (civil, criminal, administrative and accusation) and are constituted by three-judge panels that must hear all cases. In civil suits, these courts have appellate jurisdiction over the decisions of lower courts. The highest level of the judiciary is the Supreme Court (with a Private Law chamber for civil and commercial cases, Social Division for social security and labor cases, a Criminal Court, and an Administrative Division).

Notable Features: The provisions of the Family Code 1984 are drawn from various schools of law, the Algerian draft code of Muslim law formulated by a commission headed by Marcel Morand in 1916, and parallel legislation from neighboring countries (particularly Moroccan enactments). Article 222 of the Code specifies the shari’a as the residuary source of law, thus allowing for selection of appropriate interpretations from any school of law or directly from the original sources of law (Qur’an and sunnah) or from secondary sources.

The minimum marriage age is 21 years for men and 18 for women, with scope for judicial discretion if necessity or benefit is established. Compulsion by the marriage guardian, whether the wali is the father or anyone else, is expressly forbidden, as is giving a woman into marriage without her consent. Nevertheless, the law does state that the contracting of a woman’s marriage is the guardian’s duty, whether he be the father or another close male relation (or the judge if there is no wali). The marriage guardian may not prevent his ward from contracting a marriage that is in her benefit, but a father may oppose the marriage of his virgin daughter if it is considered to be in her best interests. If the guardian opposes the marriage without valid cause, the judge may authorise it.

The Code of Civil Status governs procedural matters related to obligatory marriage registration. The Family Code does state that, if there is no register entry, a marriage may be validated by judgement of the court "if the elements which constitute the marriage are fulfilled in accordance with the provisions of the law." Following such judgement, the marriage shall be entered into the Register of Civil Status. A valid marriage is constituted by consent of the spouses before the wali and two witnesses, and the establishment of mahr.

Spouses’ rights and obligations generally follow classical law. The husband is required to provide maintenance from the time the marriage is consummated so long as the wife remains in the matrimonial home, and is required to treat CO-wives equitably. Maintenance is payable from the date that a claim is filed, though a judge may direct the payment of arrears of maintenance (on the production of valid evidence) for a period of not more than one year preceding the filing of the claim. The wife is required to obey and respect her husband and his family and suckle her offspring if she is able to do so.

On polygamy, classical injunctions regarding the equal treatment of CO-wives are reiterated, with the additional proviso that the reason for contracting a polygamous marriage must be justified. It is not stated exactly how a ‘just reason’ is defined. Prior notification of existing and future wives is required by the law. Any wife in a polygamous union may initiate legal action against her husband in case of harm (darar) or petition for divorce if her consent was not obtained.

Divorce is only established by a judgement of the court, and must be preceded by reconciliation efforts by the judge. Efforts at reconciliation are not to exceed three months. The wife may petition for divorce on the following grounds: non-payment of maintenance (requiring a court judgement ordering maintenance and upon condition that the wife didn’t know of the husband’s financial incapacity at the time of marriage); infirmity preventing conjugal relations; the husband’s refusal to share his wife’s bed for over four months; the husband’s imprisonment for more than a year for a crime that brings disgrace to the family; the husband’s absence without valid reason or provision of maintenance for over a year; any legally recognised harm (relating to the provision of maintenance or the contracting of a polygamous marriage, for instance); and any grave moral impropriety that is proved. The wife may also obtain a khul’ with her husband’s consent in return for some compensation. In case there is any disagreement over the terms of the khul’, the judge may order the wife to pay a particular sum that must not exceed the value of her proper dower. If the husband initiates divorce and the judge concludes the husband has abused his right of talaq, the wife is to be awarded damages; the law does not specify the upper limit for compensation to the arbitrarily divorced wife.

If the wife is granted custody of the children, the husband must provide for their accommodation in keeping with his means. A divorcée is entitled to maintenance during her waiting period, a provision adapted from the Hanafi school. The divorcée’s custody of her children ceases at 16 years for boys (or 10 if she remarries) and until the legal age of marriage (18 years) for girls (so long as the mother does not remarry or marries someone within the prohibited degrees to her daughter), with the proviso that the decision to terminate custody is in the ward’s best interests. Full guardianship reverts to the mother upon the father’s death unless his will provides otherwise.

On succession, the Family Code introduced the ‘obligatory bequest’ in favor of orphaned grandchildren by predeceased sons, as well as the Hanafi doctrine of radd (return), extended from its classical formulation to allow the spouse relict to share in the residue of the deceased’s estate.

In the CEDAW Committee’s concluding comments to Algeria’s initial report to the 20th CEDAW session in 1999, it is noted that, partly due to Algeria’s accession to the Convention in 1993, the Family Code 1984 is being revised. Some of the suggested changes may lead to the withdrawal of certain reservations submitted by Algeria upon accession to the CEDAW.

Law/Case Reporting System: Laws are published in the Journal Officiel.

International Conventions (with Relevant Reservations): Algeria signed the ICCPR and the ICESCR in 1968 and ratified them in 1989 with several interpretative declarations. The final declaration relates to Article 23(4) of the ICCPR on rights and responsibilities of spouses in marriage and divorce being interpreted in such a way that it does not impair "the essential foundations of the Algerian legal system".

Algeria signed the CRC in 1990 and ratified it in 1993 with the following interpretative declarations: to Article 14(1) and (2) on children’s freedom of conscience and religion, as Algerian law stipulates that a child’s education is determined by the religion of the father; and to Articles 13, 16 and 17 of the Convention on children’s freedom of expression, right to privacy, and access to information, relating to particular provisions of the Algerian Penal and Information Codes and the interpretation of the provisions of the CRC in light of possible breaches of public order and decency and incitement of minors. The latter declaration also cites Article 26 of the Information Code which states that "national and foreign periodicals and specialised publications… must not contain any illustration, narrative, information or insertion contrary to Islamic morality, national values or human rights or advocate racism, fanaticism and treason…"

Algeria acceded to the CEDAW in 1996 with the following reservations: to Article 2, as Algeria reiterated its willingness to apply the provisions relating to the elimination of all discrimination by legislation and other appropriate means on condition that "they do not conflict with the provisions of the Algerian Family Code"; to Article 9(2) on equal nationality rights on the basis that the provision is inconsistent with the Algerian Nationality and Family Codes; to Article 15(4) relating to freedom of movement and freedom in choice of residence and domicile, stating that the provision "should not be interpreted in such a manner as to contradict the provisions of Article 37 of Chapter 4 of the Algerian Family Code"; and to Article 16 on equality of rights in personal status and family law, asserting that the provisions of that Article should not be taken to contradict the Algerian Family Code.

Background and Sources: Algeria, Initial Report to the Committee on the Elimination of Discrimination against Women, 1 Sept. 1998; CEDAW 20th Session, 19/01 to 05/02 1999, El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London 1996; Christelow, Muslim Law Courts and the French Colonial State in Algeria, Princeton, 1985; Knauss, The Persistence of Patriarchy: Class, Gender, and Ideology in Twentieth Century Algeria, New York, 1987; Lazreg, The Eloquence of Silence: Algerian Women in Question, New York, 1994; Mahmood, "Algeria" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Metz, ed., Algeria: A Country Study, 5th ed., Washington, D.C., 1994; Mitchell, "Family Law in Algeria before and after the 1404/1984 Family Code," in Islamic Law: Theory and Practice, ed. Gleave, London, 1997; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Redden, "Algeria" in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990.