مدى تساوي المراكز القانونية بين الزوجين

Abstract

The theme of this study entitled ""The extent of equal legal status between spouses: The Algerian Law and International Conventions” is on the study of the legal regulation of the status of spouses in Algerian law compared to the international legal system, whose provisions call for the application of full gender equality in family relations, a study in the context of cultural differences, and under Algeria's international obligations. Given the international trends and their effects on the course of legislation in Algeria, addition to some voices calling for equality at the domestic level; Algerian legislator adopted amendments based on equality between men and women, on all laws that intersect with the family system. Starting by amendment of the Family code which finds its legislative source primarily in Islamic law according to ordinance 05-02 of 2005. This amendment coincided with the amendment of the Algerian Nationality Law under Ordinance No 05- 01, so that the legislator in the regulation of relations between spouses in the family law seemed biased to the status of women, in order to reach its maximum equality with men as stipulated in international conventions, the legislator abolished all forms of gender discrimination in the nationality law so that this law became a model of equality compared to Arab nationality laws. The Algerian legislator also followed international trends in eliminating violence against women; and in this regard, The Algerian legislator adopted the criminalization of gender-based violence and established a legal framework to combat violence between spouses by amending the penal code in 2015. Although some legislative amendment has Achieved a full equality between spouses is carried, the fact that Algeria and other Islamic countries maintain any distinction between men and women, in view of the provisions of international conventions and the observations of international bodies and committees, infringes on women's right to equality with men and their right to non-discrimination, This is due to the approach based on describing human rights as universal, even at the expense of the value and moral systems of countries and the sources of legislation in them, because of the dominance of Western discourse over the international human rights law system. In light of all this, the study examined, through analysis, comparison and discussion, the provisions of equality between spouses and the justifications for the distinction between their rights and duties in national law, through two sections, The first section deals with the provisions of equality between spouses in light of the specificity of the provisions of the Algerian family law and international legal rules, with a focus on monitoring the impact of Algeria's international obligations in amending family code, and focusing on the extent of the conflict between the provisions of family law based on Islamic law and those of international human rights provisions. In the context of the conflict between the moral and ethical system of the Algerian society — common with Islamic countries — which has become known as the cultural specificity, with the universality of human rights; the study presented an analysis of the human rights discourse, focusing on the right of women to equality with men, with a review of the theories that emerged in order to balance the right of women to equality and the Islamic cultural specificities, and to ensure the coexistence of both rights. To conclude that the doctrine of the European Court of Human Rights in containing cultural diversity between states and their own national conditions for balancing and adjudicating conflicting rights and interests, known as the margin of appreciation, is the best approach to justify state intervention in restricting women's right to equality in family relations based on the urgent social needs, which intervention justifies the legitimacy of Algeria’s reservation on provisions that contradict the legal specificity of the family system. Whereas, the second section of the study dealt with the provisions of equality between spouses in light of the privacy of the rules and the special laws that intersect with their two centers, namely the nationality law and the criminal law, where the topic of this part constituted a limited conflict between cultural and legal privacy in Algeria and the provisions of international conventions, Therefore, the Algerian legislator has adopted equality between spouses, which approaches full equality as it is stipulated in international conventions, to conclude that the narrow scope of the difference and collision between the provisions of the two legal systems is a difference in the application and description of concepts according to the different sources of legislation and the specificity of society.