Jeremy
D. Morley
Algeria is not a party to the Hague Convention on the
Civil Aspects of International Child Abduction.
A well-publicized 2012 case of an abduction from New
Zealand to Algeria demonstrated the difficulties of securing the return of
children from Algeria.
Although Article 29 of the Algerian
constitution states that, “All citizens are equal before the law. No
discrimination shall prevail because of birth, race, sex, opinion, or any other
personal or social condition or circumstance,” Article 2 of the constitution provides
that Islam is the religion of the state.
The United Nations “Special
Rapporteur on adequate housing as a component of the right to an adequate
standard of living” made an official visit to Algeria in 2011 and
reported that:
-Despite
legal improvements, in particular the 2005 reform of the Family Code, Algerian
women still do not have the same status as men within the family and continue
to be victims of de jure discrimination in access to housing. According to
Algerian law (articles 142 and 144 of the Family Code), women cannot claim the
same part of an inheritance as men, since they have the right to only half of
what men are entitled to.
-Article
72 of the Family Code provides that, if a couple has children and the woman is
granted custody upon a divorce, the father must ensure that she has decent
housing or else must pay her rent. Moreover, a woman who has custody has the
right to remain in the matrimonial home until the father implements the
judicial decision.
-However,
Article 72 does not guarantee that a woman who has child custody can stay in
the matrimonial home; this is not ensured until the father implements the
judicial decision concerning housing.
-In
cases in which women are granted child custody, it is the judge who decides
case by case and may rule that the wife must continue to live with her children
in the matrimonial home or that the husband must pay his former spouse an amount
deemed to be sufficient to pay her rent. However, the amount set by the judge
is based on official rental prices, whereas actual market prices are much
higher. Moreover, it is reported that judges do not always rule on the question
of housing. In both those cases, women do not have the means to pay the rent,
and often their only alternative is either to become homeless or to remain in
the home of their former spouses, where they are often victims of violence.
Article 64 of the Family Code vests custody
in the first instance in the mother, then in the father and then in the closest
relatives. The Algerian Government reported to the United Nations’ Committee on
the Elimination of Discrimination against Women that, “Amendments to this part
of the Family Code conform to the principle of the overriding importance of the
child’s interests. Accordingly, the father is now in second place, after the
mother, in the order of persons to whom custody may be awarded.”
Under the earlier version of the
Family Code (Art. 52), only in cases in which the wife obtained custody of the
children and she did not have a guardian who agreed to take her in did she and
her children have the right to her own housing, in keeping with the husband’s
possibilities. However, the matrimonial home was excluded from that decision if
it was the sole housing.
In 2005, the position of divorced
women with children was strengthened by giving them the right to stay in their
former conjugal homes, forced arranged marriages were outlawed, and polygamy
constrained by requiring consent of the first or second wife and validation by
a local court. Furthermore, women were no longer legally required to be
obedient to their husbands.
http://www.gloria-center.org/2009/03/gray-2009-03-05/
However, the concept of wali,
guardian, was affirmed. This law stipulates that an adult woman remains under
the lifelong tutelage of a guardian–the legal reform merely allowed a woman to
choose her guardian. A guardian’s approval is required if a woman wants to
marry and–though based on social custom and not the law—banks, for instance,
routinely require signed consent by a guardian if a woman wants to open a bank
account. http://www.gloria-center.org/2009/03/gray-2009-03-05/
The
Family Code continues to treat men and women differently in the case of
divorce. Men have the right to divorce without any justification, although the
court may place conditions on the divorce. By contrast, women can obtain a
divorce only under certain conditions (e.g. abandonment), or the practice of khula, whereby a woman can divorce her
husband unilaterally if she pays him a sum of money.
Under
the 2005 Family Code, the conditions under which a wife can seek a divorce have
been broadened, and include ‘inconsolable differences’ and failure to observe
conditions included in the marriage contract.
When a
mother has been granted custody of her children, she obtains parental authority
over them. If a
woman remarries, she loses custody of her children.
The
U.S. Department of State urges U.S. citizens who travel to Algeria to evaluate
carefully the risks posed to their personal safety. There is a high
threat of terrorism and kidnappings in Algeria.