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Through their recourse to Khul’, Algerian women use the Family Code -this very text that does not recognize their equal rights- in order to free themselves from a violent husband or a husband with whom they can no longer cohabit. The time when the husband refused to grant a divorce to keep his wife under his guardianship seems to be over. Women from various backgrounds prefer to pay financial compensations to redeem their freedom, thus taking the Islamo-conservatives in their own trap.
Nadia Ait-Zaï, lawyer, Director of the Centre d’information et de documentation sur les droits de l’enfant et de la femme (CIDDEF) (Information and Documentation Centre on Children’s and Women’s Rights) which she founded in Algiers explains the legal origin of this right.
Why did the Algerian legislation not grant women the right to file for divorce, as is the case for men, instead of allowing them only this practice (the Khul’)?
In 1984, when the Family Code was adopted, the legislation could have retained this form of marriage breakdown, but it was not the case. Legislation wanted to conform to the rigorous Muslim tradition, to classical Muslim law by choosing repudiation qualified as divorce by unilateral will and its corollary, the Khul’, both from a verse of the Koran. In 1996, during the preparation of a draft revision of the Family Code, we proposed to delete this terminology and this double form of divorce petition by allowing both spouses to separate without reasons because these two forms of divorce provided for by Articles 48 and 54 are built on the principle of not disclosing the reason for the separation.
So can women file for divorce without having to justify themselves?
The wife can separate from her husband without his consent by paying a sum as “Khul’”. It is interesting to note that Khul’ is the corollary of repudiation, that is, the wife also has the right to divorce (to repudiate) her husband. This is a possibility granted by Muslim law taken from a verse in the Koran (Sura 2-229) allowing the wife to offer material compensation in exchange for her freedom (in the Koran translated and commented by Hamidullah).
The Family Code adopted this rule refined by the Supreme Court in order to put an end to an abuse of interpretation of the rule by the judges who required the consent of the husband to accept the divorce requested in this form. The judges of the Supreme Court ruled that the request for Khul’ was no longer subject to the husband’s consent. By this decision, the Supreme Court recognised that this institution was indeed a woman’s right. Khul’ is a process allowing the woman to file for divorce by paying a financial compensation to the husband. In 2015, the legislation thus reinforced and clarified this rule by adding the wording “without the husband’s consent” in Article 54 of the Family Code. In the event of disagreement on the financial compensation, the judge orders the payment of a sum, the amount of which may not exceed the value of the parity dowry.
It is not superfluous to repeat that in Muslim law, repudiation is the right of the husband to break the marital bond with no cause. Khul’ is the corollary of this right, giving the wife, the right to request the termination of the marital bond without the husband’s consent. This is why it would have been more judicious for the legislation to modify the provisions of Article 48 relating to divorce by introducing the combination of the two rights of the spouses and by affirming that divorce can be requested by one or the other party without reasons for compensation to the party aggrieved by this request.
Do you believe Khul’ is real valid way to redeem a woman’s freedom?
Some will say yes: by wanting to separate in this way, the wife will redeem her freedom, others will say no because Khul’ is the corollary of repudiation with the same effects as repudiation (divorce by unilateral will). In order to fully comprehend this mechanism, we must consider the context of these two forms of divorce stemmed from the Koranic verse. Repudiation without reasons obliges the husband to repair the damage caused to his wife because the divorce is considered abusive. Requested by the wife, Khul’ also causes damage to the husband, it is therefore necessary that she returns to him what constituted the amount of the dowry. The amount of the dowry is a financial compensation, that is, a form of reparation. Often, the dowry is not quantifiable. It varies between nothing, 2000 DA or 100,000 depending on the practices used in the regions of Algeria. Khul’ is an easy practice that allows women to regain their freedom.
Are requests for Khul’ increasing or decreasing?
Requests for Khul’ are increasing because it is the easiest way for women to file for divorce without having to give reasons. Nevertheless, the rates are low when compared to those of repudiation. The conservatives are fighting Khul’ because they believe that the freedom a woman takes to separate from her husband endangers the family. We note that repudiation is the most used request for divorce by the spouse. Being in the difficulty of asking for a divorce in the 10 cases provided for by Article 53, subject to proof, women increasingly resort to this form of termination of the marital bond that is easier to obtain for the simple reason of not to have to give proof of the alleged arguments or of not giving any.
