PREMARITAL MEDICAL EXAMINATION BETWEEN LEGAL OBLIGATION AND CONSENT OF THE PARTIES WITHIN THE FRAMEWORK OF ALGERIAN FAMILY LAW
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Abstract
This study seeks to shed light on the impact of the Algerian legislator's requirement for premarital medical examinations and its influence on the consent of those involved in concluding the marriage contract. The premarital medical examination plays an effective role in protecting the family and society, as it contributes to reducing hereditary diseases and decreases the number of divorce cases caused by defects. The Algerian legislator has mandated the performance of this medical examination before marriage, requiring marriage applicants to provide a medical certificate free from any defect or disease that could pose a risk incompatible with the objectives of marriage. Furthermore, those responsible for drafting the marriage contract must ensure that the parties are aware of the examination results. However, the marriage contract cannot be refused for medical reasons contrary to the will of those involved.
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References
Order No. 05-02, dated 18 Muharram 1426 AH, corresponding to February 27, 2005, containing the Family Law, amended and supplemented by Law No. 84-11 dated Ramadan 9, 1404 AH, corresponding to June 9, 1984, published in the Official Gazette No. 15, dated February 27, 2005.
Executive Decree No. 06-156, dated 13 Rabi' al-Thani 1427 AH, corresponding to May 11, 2006, setting the conditions and procedures for implementing the provisions of Article 7 bis of Law No. 84-11 dated June 9, 1984, containing the Family Law.
Ahmad Reda, Dictionary of the Arabic Language, Modern Linguistic Encyclopedia, Vol. 4, Dar Maktabat al-Hayat, Beirut, 1960, pp. 364-365.
Ibn Manzur al-Afriki, Lisan al-Arab, Vol. 8, Ministry of Religious Affairs, Endowments, and Da'wah and Guidance, Kingdom of Saudi Arabia, Al-Amiriyah, undated, p. 330.
Abu Nasr Ismail ibn Hamad al-Jawhari, Taj al-Lugha wa Sihah al-Arabiyya arranged alphabetically according to the initial letters, Dar al-Hadith, Cairo, 2009, p. 690.
Safwan Muhammad Udaybat, Premarital Medical Examination: A Jurisprudential and Legal Study, Dar al-Thaqafa for Publishing and Distribution, 1st ed., Amman, 2009, p. 55.
Abdel Fattah Ahmed Abu Kila, Premarital Medical Examination and Its Jurisprudential Provisions, Dar al-Fikr al-Jami'i, Egypt, 2008, p. 66.
Ahmad Muhammad Kanaan, The Medical Jurisprudence Encyclopedia, a comprehensive encyclopedia of jurisprudential provisions regarding health, illness, and medical practices, 1st ed., Dar al-Nafa'is, Beirut, 2000, p. 763.
Executive Decree No. 06-154, previous reference.
Saad Abdellawi, Contemporary Medical Developments in Algerian Family Law: Provisions and Their Impact on Family Issues, Doctoral Thesis, Batna 01 University, Faculty of Law and Political Science, Department of Law, 2020/2021, p. 183.
Executive Decree No. 06-154, previous reference.
Executive Decree No. 06-154, previous reference.
The same reference.
Order No. 05-02, previous reference.
Belhaj Arabi, Research on the New Algerian Family Law, Office of University Publications, Algeria, 2014, p. 195.
Boujemaa Souilah, An Analytical Perspective on Law 11/84 Containing the Family Law in Light of Recent Developments of Order 02/05 Amending and Supplementing It and the Jurisprudence of the Supreme Court, Algeria, 2006, p. 60.
Al-Hussein Ben Cheikh Ath Moulouya, Guide to Family Law, (Supported by the Jurisprudence of the Supreme Council and the Supreme Court from 1982 to 2014), 3rd ed., Dar Houma, Algeria, 2015, p. 35.
Executive Decree No. 06-154, previous reference.
The same reference.
Rashid Masoudi, The Medical Certificate Before Marriage: A Comparative Study, Al-Rashidiya Magazine, Dar Al-Gharb, Mustapha Istanbul University, M'kacer, 2008, Vol. 1, p. 75.
Judicial Magazine, No. 06-02, dated February 23, 1993, Case No. 88856, p. 69.
Executive Decree No. 06-154, previous reference.
Ghaniya Qari, Explanation of the Amended Family Law: A Comparative Study between Sharia and Law, Dar Toledo, 1st ed., Algeria, 2011, p. 20.
Laâla Saadi, Marriage and Its Dissolution in Algerian Family Law: A Comparative Study, Doctoral Thesis, University of Algiers 1, Ben Youssef Ben Khedda, 2014-2015, p. 40.
Abd al-Qadir Bin Harz Allah, Summary of the Provisions of Marriage and Divorce in Islamic Jurisprudence and Algerian Family Law According to Its Latest Amendment (Law 05-02 dated May 4, 2005), Dar al-Khaldounia for Publishing and Distribution, Algeria, 2007, p. 53.
Adel Lamouchi, Premarital Medical Examination and Its Effect on Consent According to Algerian Family Law and Islamic Jurisprudence, Algerian Journal of Legal, Economic, and Political Sciences, No. 53, Vol. 5, 2016, p. 19.
The customary marriage refers to a marriage contract that is not documented with an official document, whether written or unwritten.
Article 40 of the Algerian Family Law.
Dalila Ferkous, Jamal Ayashi, Lectures on Algerian Family Law: The Formation of Marriage, Dar al-Khaldounia, Algeria, 2016, p. 198.
Adel Lamouchi, Consent in the Marriage Contract in Positive Laws and Islamic Jurisprudence, Thesis for a Doctorate in Sciences, University of Mouloud Mammeri, Tizi Ouzou, Faculty of Law and Political Science, 2018/2019, p. 21.
Osama Omar Suleiman Al-Ashqar, New Jurisprudential Developments in Marriage and Divorce Cases, 1st ed., Dar al-Nafa'is, Amman, Jordan, 2000, p. 8.
Hakima Kehil, Defects of Consent and Their Impact on the Validity of Marriage, Al-Sada Magazine for Legal and Political Studies, Vol. 4, No. 1, 2022, p. 69.
Faten Bouaichih Kilani, Medical Examinations for Couples Before Concluding the Marriage Contract: Their Foundations and Objectives – A Comparative Study, Dar al-Nafa'is for Publishing and Distribution, Amman, Jordan, 1st ed., 2011, p. 159.