الحماية القضائية للأسرة

Abstract

This study deals with the issue of judicial protection of the family - marriage and divorce - which aims to preserve the dignity, rights and freedoms of spouses and children, and fair justice between them through justice. As is known, the idea of family protection has been and still is the subject of continued interest and research by many jurists and scholars, by virtue of what this idea raises in terms realistic legal issues and litigation. Consequently, the role of the judge in family cases is limited to ensuring the protection and preservation of the family in various mechanisms, since the work of the judge is a humanitarian function in which there is a great social aspect. Family law has broadened the intervention of the judge by finding the appropriate solution according to the different circumstances and circumstances and the implementation of his authority to find appropriate solutions between the spouses. Even if it suffers from a certain disintegration; Therefore, our study is divided into two parts: The reformist role of the judiciary lies in the preservation of family unity, which revolves around the role that the judge plays and assumes in preserving the family entity through the exercise of his loyal work, and what this means. is that there are actions that the judge performs. Other than the dispute resolution work of disputes, such as his practice of his fair work through his interference in the protection of minors. In particular, the granting of judicial authorization to marry her before the legal age according to the text of article 07 of the Family Code, as well as what is related to the management of her money and the very effects important results, It was also concluded through our research that the Algerian legislator has included new articles affecting the code of civil and administrative procedures and the penal code that support the protection of minors. However, on the other hand, there is no text which recognizes and gives the right to a minor to plead for divorce and its effects. This is due to the risk of taking a stand for divorce due to his youth and lack of awareness of the consequences of things. In addition, it can be said that the judge has an important role in the granting of the authorization of polygamy, which came in the text of article 08 of the family code allowing the restriction of polygamy within a framework and special conditions. This section gave the judge wide discretion to grant permission to marry to those who desire polygamy. This is when the husband does not abuse this right. The judge intervenes in the assessment of the existence of the legitimate justification and in the establishment of the intention of justice, and the judge also interferes in the assessment of the opinion of the ex-wife and of the woman he agrees to marry, as the role of family affairs the judge is limited to ensuring that the ex-wife and subsequent wife are informed. The judge also intervenes in the reconciliation between the spouses and modifies his efforts by activating the different mechanisms that help him to be reconciled between the spouses, considering that reconciliation is one of the most important steps on which the protection of the family is based. family, Where we find the text of article 49 forced the judge to deploy all his efforts to bridge the gap of points of view and try to reconcile, and to find solutions to reduce conflicts and disagreements and to protect the family and children in particular; In addition to family reconciliation, there is a second judicial mechanism which strengthens the protection of the family and helps to activate the arbitration mechanism, so that the judge intervenes in the appointment of the two judgments according to the law or to the spouses request. The judge also determines the mission of the two arbitrators and asks them to appear within two months, in accordance with article 56 FC. The judge must work based on the submitted report, and in its light will be able to rule on the 'case, as he may also dismiss the report and appoint two other arbitrators. The Algerian legislator neglected the family mediation mechanism, which is not new, but rather has existed since, and came to settle disputes and inevitably contributes to maintaining the cohesion and stability of the family and made the prosecution a main party in all matters related to the family after its intervention was an exception in some family matters and an organized party. The supervisory role of the judiciary is linked to the protection of the weak part of the family, through the implementation of its supervisory role; This may be the responsibility of the husband, the wife or even the children; By the judge's investigation into the damage caused to the injured party and his compensation, starting with the engagement, because it is a prelude to the marriage contract, Noting that the scope of the judge's intervention in this case is limited in the case of one of the two fiancées, articles 5 and 6 of the FC stipulating that the revocation affects both the gifts and the dowry; And repair the resulting damage to refrain from engagement. According to the text of Article 5, Paragraph 2, so that the judge adjusts the annulment that caused the damage necessary for compensation by examining the reasons. In addition to the above, we also refer to the positive role of the judge in the assessment of damages in the event of divorce, so that the judge intervenes and decides for the injured party a fair compensation, and this differs according to the environment and the custom. The adopted norm is the personal norm, and it is also subject to the difference of dissolution of the marital bond, And we also note that the Algerian legislator has enumerated the reasons which allow the request for divorce, the intervention of the judge, and the role that it plays in the appreciation of divorce cases, which is to check whether there are reasons or not, With regard to arbitrary divorce, which is stipulated in article 52 of the FC, the judge has the power to assess arbitrary divorce by deciding the divorced woman to compensate for the damage caused to her whenever it appears to her that the husband was abusive in the divorce. As for the cases of abandonment, which are mentioned in article 52 of the CF, we note that the legislator did not specify the cases of abandonment or defined them, but left it to judicial jurisprudence and underlined the role played by the judge in determining according to judicial jurisprudence to demand divorce and compensation from the injured party. But he rather left to the case law and underlined the role played by the judge during the determination according to the case law, to rule on the divorce and the compensation of the injured party. The law granted the judge a positive role, which is mainly represented in the maintenance and residence of the divorced woman, taking into account certain principles such as the living conditions and the financial situation of the husband. We also spoke about the power of the judge to protect the rights of the divorced woman over the financial and non-financial assets of the family. As well as its role in determining the statutory retirement pension and, abandonment pension, and alimony; We also discussed the preventive role of the judiciary in paternity claims by evaluating traditional legal methods of establishing parentage after confirming the existence of a valid marriage. The role of the family court judge is also evident in establishing the lineage by modern scientific methods, and the code of civil and administrative procedures allows the judge to seek the help of experience and hear witnesses. We also find its role in the field of nonfiliation, whether by legal means, namely people stricken with anathema. It should also be noted that the genetic fingerprint is not considered as proof of non-parentage. Finally, we have dealt with the supervisory role of the judiciary in the resolution of disputes relating to custody through the use by the judge of its positive role in the allocation and extension of custody, the assessment of the interests of the child in custody, as well as its abandonment, taking into account the interests of the latter, and we also mentioned the assessment by the judge of the financial rights related to custody.