Khol’â (the dislocation): An Analytical View of the Supreme Court’s Judges Compared to Islamic Jurisprudence

Abstract

The Algerian legislator has developed several ways and methods to release the marital union. One of these is the Khol’â or the dislocation whereby the woman requests divorce from her husband in exchange for money that she offers to him. If the husband accepts both Khol’â or the dislocation and the offer, then there is no problem. In case he accepted the dislocation and rejected the offer, the judge would have to determine the allowance on the basis of the dowry of similar cases. Before the amendment of the family code in 2005 and due to the lack of clarity in the text, the judges’ opinions differed if the husband refused dislocation altogether. A woman may request Khol’â before completing the physical marriage procedures, that is, before consummation, and here we face the problem of the judges ’response to her request. This research paper aims to clarify the truth of what judges in general, and Supreme Court justices in particular, have said, regarding whether Khol’â is considered a pure right for women or men had a share in it. And, whether it is really not valid to divorce before consummation because it violates either the law or the provisions of Islamic law. In our research, we have used the descriptive and analytical methodology, in addition to the comparative method. At the end we have deduced that the judges used to stipulate the husband’s consent for the Khol’â. But now they have established that it is a pure right for women, especially after amending Article 54 of the family law. They are also almost unanimous in the non-permissibility of Khol’â before consummation, while the Supreme Court is settled on that. We have come to the conclusion that this does not have a legal basis, that means there is no text that prohibits it not even in Sharia, as the jurists of the four schools are all agreed upon its validity.