Thursday, September 18, 2014

Notes on Algeria and International Child Custody

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.
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.
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.