Family law applies to the creation, termination, and course of the family

relationship. Matters

governed by family law include prenuptial agreements, dissolution of marriage

(divorce),

separation, judgment by nullity, spousal support, child support, child custody,

visitation, and

adoption.

UNIVERSITY OF HASSIBA BEN BOUALI CHLEF

FACULTY OF LAW & POLITICAL SCIENCE

DEPARTMENT OF LAW

private LAW

Comparison Of Legal Systems

Major Legal Systems In The Contemporary World

Nowadays, the existing legal systems of the world are: a) The Civil Law System;

b) The Common Law System; c) The Communist Law System; and d) The Islamic Law
System.

The Civil Law System

The civil law system is the oldest system in the world and the most influential on the
other law systems. It finds its roots in the Roman law, which was the product of a
brilliant civilization extending from the Mediterranean to the north sea and from
Byzantium to Britannia.
The Civil Law System is characterized by the compilation of legal principles into
scientifically arranged codes issued by the legislative authority. It such a system, the
role of the courts is limited, theoretically at least, to apply the law provisions as
embodied in the codes, whenever they are presented with a case by the opposing
parties.

France is considered as the cradle of the civil law system. The countries, which apply
the civil legal system, include the countries of continental Europe, countries of Latin
America and those of the Middle East, such as Turkey, Jordan and Lebanon.

The Common Law System

England is the birthplace of common law system. The main feature of English law is
that it is largely case law or, more precisely, a Judge-made law. That is, the bulk of the
common law and equity has not been enacted by the parliament, but has been
developed through the centuries by the judge applying established or customary rules
of law to new situations and cases as they arise.

Unlike the position in civil law countries, the major part of the common law is the
product of judges. It is case law. i.e. a Judge-made law. In other words, judicial
precedents constitute a separate source of law and have an independent authority of
their own in common law countries, whilst they are considered as evidence of what the
law is in civil law countries.

It is worth mentioning, here. That the common law system is found today in almost all
the English-speaking countries. From the British Isles. Where it originated. The
common law system was transferred by British settlers to their settlements in the
United States of America, Australia, Canada, New Zealand, Pakistan, India, Nigeria
and South Africa.

The Islamic Law System

Islamic law is called Sharia, which is a derivative of an Arabic root word “Track”,
“road” or “path” and means that this law constitutes a divinely ordained path of
conduct that guides the Muslim towards the fulfilment of his, or her, religious
conviction in the life and reward from his or her Creator in the life hereafter. The rules
of Sharia not only cover religious rhetoric worships and practices, e.g. prayer and
fasting, and matters of family law, e.g. marriage, divorce, etc. but also they cover legal
transactions and areas of civil law, e.g. the validity of contracts, the principles of
property law, etc. In some Islamic States, such Saudi Arabic and Iran, Sharia actually
makes up mostly the whole part of the legal system of the State. And the vast majority
of Muslims are still governed by Islamic law in family matters.

Insurance Law

Insurance Contract

Insurance contract is an agreement whereby a person, called the insurer, takes the
engagement, against a remuneration called whether premium or contribution, to fulfil
some obligations, in the occurrence of certain eventualities happening to the insured’s
person or property.

According to another definition, insurance is an agreement by which one party (the

insurer) for a consideration (premium) promises to pay a sum of money (indemnity) to
the other party (insured) in the case of certain risk happening to the insured’s person or
property.

By virtue of these two definitions, we say that insurance is an arrangement for shifting
the risk from the shoulder of the insured to the shoulder of the insurer. It is a way of
security to the insured against an unexpected perils or injuries. It protects the insured
from the risk of loss resulting from an unforceable dangers which could disturb his life
or his belongings. The idea of insurance is to distribute the risks among many insureds
to help the eventual victim to overcome his personal difficulties. It is a mutual
assistance.
The owner of a house or of goods or a ship can never be certain that these things are
not going to be damaged or lost. It is of the greatest importance therefore that the
owner of any of these things should take out insurance cover or insurance policy.

The risk (or the future event) may be certain to happen as death, or it may merely be a
possibility uncertain. Thus the two categories of insurance:

I- Indemnity insurance: this provides an indemnity against loss as a fire policy on a

house, or a marine policy on a ship.

II- Contingency insurance: this provides not an indemnity but payment on some
contingent event. This is to be found in a life policy or a personal injury policy.

The sum to be paid is not measured by the loss but is stated in the policy. The
contracted sum is paid if the life ends or if an injury is sustained, irrespective of the
value of the life or injury.

Like any other contract, a contract of insurance is an agreement whereby the parties
make promises to each other. In this particular contract, one party approaches the
insurance company and pays, or promises to pay, a sum of money called a premium, in
return the insurer promises to pay out a sum of money if a certain thing occurs in the
future.
 Private International Law (II)

The Renvoi

The Renvoi is an institution of Private International Law that allows the possibility for
the foreign law declared as competent by the conflicting norm of the forum court, to
decide in turn, to make a renvoi through its own conflicting norms, to another law,
either to the approached court’s law, or to the law of a different legal system .

The Renvoi implies a conflicting between conflicting norms. This conflict can be
positive or negative. We can state the presence of a positive conflict between the
conflicting norms (between the conflicting norm of the forum court and the foreign
conflicting norm declared competent) when both conflicting norms stipulate that their
own law is competent to regulate the judicial relation with foreign element.

As for the negative conflict, both conflicting norms in presence declare unqualified
their own material law to manage the judicial relation with element of extraneity. In
this case, the forum law court pronouncing itself as unqualified to manage the judicial
relation, assigns this responsibility to another law, meaning it refers to another foreign
law. If the latter does not accept the given competence and declares competent another
law (that of the Court of the judicial forum or that of a third country) regarding that
judicial relation, renvoi to that law.
 Family Law & Inheritance

The first Algerian code of family law, promulgated on June 9, 1984, and it was
amended and supplemented in 2005. The code based on Islamic Law, but takes
account of the development of Algerian society, especially in the last hundred years.

The Algerian family code is arranged in four books, covering marriage and its
dissolution, legal representation, succession and provisions relating to wills, legacies,
gifts and assets held in trust .

Marriage :

Marriage is defined as a legal contract between a man and a woman, in legal form. It
has, among other aims, the founding of a family based on affection, domestic
tranquillity and mutual assistance and the moral protection of the spouses for
preservation of family ties.

Marriage requires the consent of both parties and a gift by the groom of a dowry to the
bride, as well as the presence of the bride's father or guardian and of two witnesses.
The marriage must be registered before a notary or legal functionary.

Divorce:
Divorce is the dissolution of marriage. It arises from the will of the husband, mutual
consent of the spouses, or the demand of the wife as provided in articles 53 and 54 of
Algerian family code.

According to article 53 above mentioned. The wife can seek a divorce on the
following grounds: (1) non-payment of maintenance; (2) infirmities hindering
realization of the objects of marriage; (3) refusal of the husband to cohabit with his
wife for more than four months; (4) conviction of the husband which is of such a
nature as to dishonour the family and render impossible leading of common life and
conjugal relations; (5) absence of the husband for more than a year without a valid
excuse or maintenance; (6) violationof provisions of article eight; (7) an immoral act
which is severely reprehensible; (8) for persistent disagreement between the spouses;
(9) for violation of the clauses stipulated in the marriage contract; and (10) for any
recognized legal injury.

Inheritance:

Shariah provides specific rules of inheritance that are applied to Muslims. Generally
these rules are based on the principle of providing specific allocation /shares of the
estate of the deceased to certain types of his relatives such spouse or parents and the
distribution of the remainder to other heirs such as offsprings, brothers/sisters and
uncles/aunts. Shariah rules of inheritance are applied in countries in the Area. They
might also apply to the assets of a deceased Muslim person in a western jurisdiction or
a Muslim resident in such a country.