A Comparison of Islamic Law and the Algerian Family Code within the Framework of Unfair Divorce Provisions

Abstract

Unfair divorce remains a significant issue faced by contemporary societies. Addressing this problem requires effective legal and legitimate interventions. The Algerian Family Code derives its fundamental principles from Islamic Sharia and is influenced by Islamic law. However, over time, the Algerian Family Code has undergone various changes and adjustments to align with modern legal and social needs. The implementation of unfair divorce under Islamic law and the Algerian Family Code has witnessed several differences and contradictions. This study examines the provisions related to unfair divorce in Islamic law and the Algerian Family Code, highlighting their similarities and differences and the extent to which the Algerian Family Code is influenced by Islamic law. The study focuses on the extent of harmony and divergence between the legal and jurisprudential bases concerning unfair divorce in Islamic Sharia and the Algerian Family Code. Considering that Islamic Sharia serves as the primary source of the Algerian Family Code, the study investigates the challenges and disagreements encountered in their application. The significance of this research lies in shedding light on legal and jurisprudential matters related to unfair divorce in Algeria, providing crucial references to legal, religious, and academic institutions to establish a balanced legal framework in cases of unfair divorce, and encouraging further research to find comprehensive and harmonious legal solutions for Algerian society. The study adopts a comparative and analytical approach by collecting data and legal sources related to unfair divorce in Islamic and Algerian law, including legal texts on family and legislation in Algeria, fatwas, and judicial decisions concerning divorce cases. The obtained information is meticulously analyzed and compared to identify the similarities and differences between the two legal systems regarding the concept and conditions of unfair divorce. Moreover, the study investigates the laws and provisions aimed at preventing unfair divorce in both Islamic law and the Algerian Family Code. The analysis and comparison reveal significant disparities in the concept and procedures of unfair divorce between Islamic law and the Algerian Family Code. While Islamic law refers to such divorces as "bid'i divorce," the Algerian legislator designates them as "unfair divorce." Furthermore, the instances qualifying as unfair divorce differ between the two systems. Under Islamic law, unfair divorce occurs during the menstruation period, during the "clean" period when the husband touches the wife, through three pronouncements in a single session, or during a terminal illness. In contrast, the Algerian legislator limits unfair divorce to three situations: when the husband intends to harm his wife through divorce, when the husband seeks a minor benefit at the expense of his wife, or when the husband's purpose in divorce is to obtain an unlawful advantage. Lastly, concerning unfair divorce compensation, Islamic law grants the divorced woman the right to "mut'a" to deter the husband and compensate for her losses. The Algerian legislator, upon proving unfair divorce, awards the divorced spouse both the "mut'a" stipulated by Sharia and compensation for the damages incurred.