من معوقات الممارسة القضائية في التشريع الإجرائي الأُسري

الملخص EN

This paper stresses the necessity of reviewing the texts of civil code and administrative procedures.

In fact, practice has shown, that these texts may be described as heterogeneous to the texts of the Family Code.

Moreover, some procedural texts may be judged as conflicting, or rather paradoxical.

In this sense, we try to raise certain facts, reflecting problematic cases.

First, though it is commonly agreed that the texts of the family law are inspired by Islamic law or “Sharia”, only, practical level, shows that the rule of Sharia, is widely neglected and void in many Law disciplines, mainly in the new higher education curriculum.

Needless to say, that “Sharia” is the first reserve source after legislation.

This educational gap, makes man of law and the justice miss minimum ways to take advantage of it.

We may observe, also, that the texts of the Code of Civil and administrative procedures form judiciary obstacles when thinking about the possibility of making these texts homogenous with Islamic law.

Above this, some problems and shortcomings and even constraints are brought about when dealing with domestic procedural legislation.

In this framework, the most recurrent of these problems is divorce judgment.

The problem lies in the fact that this judgment is issued as final, so that it will disapprove the appeal, except in material respects.

However, it is subject to appeal cassation before the Supreme Court, which is a court of law, and not of complete determination of cause.

The question is raised, here, when asking about the case if the court issues a judicial decision to accept the appeal.

In this situation, there is no doubt, that the decision applies, retroactively, to divorced couple and consider them, eventually as married.

This, indeed, occurs after a period where divorce judgment may have already been implemented, and probably, one has already, agreed to marry the other! This, consequently, may result in asking: how could a woman be married to two spouses (with both her ex-husband and a new on)? Additionally, many of the divorce judgments are issued regarding non-deterministic aspects, as long as they are resumed only with what is deterministic.

It is assumed that these judgments are not to be conveyed at all, but in practice, this is possible , and as a result , they may beget a problematic in the proper conduct of the proceedings especially appeal dates.

So, in this case, what is the convenient solution? Another problematic case may be exposed.

It is about the fact that The Code of Civil Procedure, states that the administrative judge should consider every real estate issues, and the judge in charge of family affairs assumes and protects the affairs of minors, even if these affairs are real estates.

We may advance that, this may, in fact, create a positive conflict between both of them in terms of jurisdiction.

So, in such a situation, what is the proposed solution? These are some questions that I would like to highlight, as a contribution to alert concerned parts with such practical issues.