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Algerian Women Join Hands to Oppose Law Banning Custody of Children to Divorced Mothers

Article 66 of the Family Code deprives a divorced woman in Algeria of the custody of her children if she remarries.

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In Algeria, Article 66 of the Family Code deprives a divorced woman of the custody of her children if she remarries “with a person not related to the child by a prohibited relationship”. Despite the taboos surrounding their situation, more than 12,000 divorced Algerian women have decided to break the silence.

Karima’s divorce was granted in 2014. But seven years later, the threats made by her ex-husband as he left court still haunt this resident of southern Algeria, who prefers to remain anonymous.

“He told me: ‘I broke your life. And if you dare to rebuild it one day and remarry, I’ll come and take your daughter back,’” she recalls. For fear of this scenario becoming a reality, she refuses to live with another man. “I’ve had offers, but I don’t want to lose my daughter.”

Because in Algeria, Article 66 of the Family Code deprives a divorced woman of the custody of her children if she remarries “with a person not related to the child by a prohibited relationship”.

In other words, under Algerian law, when a mother breaks her marriage, whether the decision is hers or her spouse’s, custody of the child reverts to her, unless she renounces it. On the other hand, if she remarries a person with no close family ties to the child from the previous marriage, she loses custody. The father, on the other hand, can start a new married life as many times as he wishes, without any conditions, and without his custody rights being affected.

Religious marriage or forced celibacy

All the ex-spouse has to do to take the child away is to present proof of his ex-wife’s remarriage to the courts. As a result, when they want to live with another man, many women settle for a religious ceremony, without any paper trail.

“Religious marriage offers no guarantee, neither to the woman nor to the child,” says Warda Berrahoui. “Without a marriage certificate or family record book, the child can only bear the name of his mother. How will they be perceived by society? How will they grow up?”

As a lawyer in Oran, in the northwest of the country, she witnesses many cases of withdrawal of custody rights of remarried women.” Often, ex-husbands do it just to get even. One even went to the United States with the children.”

To escape a similar situation, many force themselves into celibacy. “I put my love life on hold. In the current conditions, the question of marrying again does not even arise for me,” says Radia, 43, mother of a teenage daughter.

Thousands of women demand justice

Despite the taboos surrounding their situation, Radia, Karima and more than 12,000 other divorced Algerian women have decided to break the silence. For several months, they have been meeting via a Facebook group where they exchange advice and support. And under a hashtag that can be translated as “no to the forfeiture of the Algerian mother’s right of custody in case of remarriage”, written in Arabic and English, they ask for the repeal of Article 66 of the Family Code – the one that deprives them of their “hadana,” an Arabic term to designate the custody of the child.

Representational image. Photo: Flickr/beavela/CC BY-NC-ND 2.0

Their struggle is not limited to the virtual sphere. These “mères Courage” joined together in an association and multiplied the strategies to put pressure on politicians: press conferences, open letters to the President of the Republic and the Ministry of Religious Affairs, petitions, etc.

“We try to make ourselves heard, but it is as if they’re plugging their ears in front of us. They don’t answer us. There is always something more urgent, more important. Faced with silence, I lose hope, and I even think of suicide…”, Karima says. The young woman soothes her sorrow by talking with the members of the group. “But sometimes the others’ stories are even more depressing than mine.”

Family and societal pressures

Karima harbours these thoughts because she feels “trapped; no longer able to find fulfilment in life”. She is 35 years old and her father does not allow her to move alone with her daughter. In Algeria, one only leaves the family home after marriage. Very few people move out on their own when they are single, regardless of age or gender.

“Being a woman and living alone is almost impossible. But to be a divorced woman is even worse. Especially in the south, where it is still very conservative,” laments the civil servant, to whom several friends turned their backs after her separation. “Their husbands forbid them to see me. They think I have a bad influence on them.”

Karima experiences these prejudices on a daily basis. In the family, in the street, at work…“People think that once you are divorced you accept everything, you have no honour. I have even been offered sex for money. I am regularly harassed. As if it was normal, as if it was allowed.”

With few exceptions, the majority of divorced women in Algeria have no choice but to return to live with their parents, often with brothers, sisters, sisters-in-law… and the ensuing promiscuity.

This is the setting in which Hanane lives. This 30-year-old Oranese woman does not work. For the past three years, she has shared a room with her son at her parents’ house. “We have no privacy, and we always have problems with the family. It’s not a life, but I can’t do otherwise. I won’t get married again so I don’t lose my son.”

A choice, or rather a non-choice, that does not please the thirty-year-old’s family. “They put pressure on me and want me to remarry. My father accuses me of dishonouring him, refuses to raise my son and thinks I should leave him to his father. My brother thinks no one will take him seriously because he has a divorced sister at home. My mother says that my child won’t bring me anything anyway.”

Faced with such a painful daily life, the young woman gets depressed. “Sometimes I think about going away. I have dark thoughts. I can’t see a way out. At other times, I think I should take my child to Europe by sea to live and be at peace.

A law contrary to the constitution

Nadia Aït Zaï is a lawyer at the court of Algiers and a long-time activist. Known in particular for demanding equality in inheritance, she has been fighting for years for the repeal of the Family Code.

This set of laws that many feminists call the “code of infamy” frames the rules that determine family relations in Algeria. From marriage to divorce, through life as a couple, women are reduced to the status of minors for life.

It is this Code that contains Article 66, which withdraws the child from the divorced mother if she remarries. Last June, Aït Zaï, who is also the director of Ciddef (Centre d’information et de documentation sur les droits de l’enfant et de la femme) in Algiers, published a book in Arabic and French entitled Plaidoyer pour l’abrogation de l’alinéa 1 de l’article 66 du code de la famille (Advocacy for the repeal of paragraph 1 of Article 66 of the Family Code).

She underlines that Article 66, by its discriminatory nature and its failure to take into account the interest of the child, is contrary to the constitution. From the legal framework to the religious foundations, the lawyer lays out a whole spectrum of arguments for the abolition of the law.

“In the Qur’an, there is no verse that pronounces the forfeiture of custody to the mother when she remarries. On the contrary, the Sura ‘Women’ gives the right of custody to the woman when she remarries,” she argues.

Moreover, “Malikite law [the Sunni Muslim school of law followed in Algeria, and more widely in the Maghreb – editor’s note] favours the maternal line. […] A consensus has emerged among the ulemas on the fact that the woman has priority in the custody of children under the age of discernment,” she details in her plea.

For Nadia Aït Zaï, “this measure is based solely on custom. At the time, when a woman lost her husband, she would remarry her brother-in-law to avoid seeing the child in another family. This is what Article 66 is based on.”

According to figures from the Department of Justice, between 2016 and the first quarter of 2020, 6,138 cases were decided regarding the mother’s forfeiture of custody rights after remarriage. Nearly 62% of the decisions removed custody from the mother.

But Nadia Aït Zaï prefers to see the glass as half full. She emphasiSes the “significant increase in the rate of retention [of custody rights to the mother – editor’s note], despite Article 66, which, for many, was prohibitive.” However, the lawyer is under no illusion: “We have fought other battles that took 10 years to succeed. We know that it will take time.”

She nevertheless hopes that until Article 66 is repealed, cases can be studied on an individual basis, with a social inquiry and consideration of the child’s interests.

Note: This article, which first appeared on Mediapart, has been republished via Progressive International