التكييف الفقهي للكفاءة بين الزوجين وموقف تشريعات الأحوال الشخصية العربية منها

Abstract

In Islamic law, the marriage contract is considered one of the holiest contracts, the most stringent covenants, and the most important productive human institution. Because it is the first nucleus for building the desired Islamic family, which results in kinship relations and new intermarriage, and for the proper formation of this family, most Islamic Sharia jurists discussed the issue of “competence between spouses”, As one of the means of stabilizing married life and ensuring its stability. and preserving them from cracking and collapsing, then they differed as to the extent of their feasibility as major premises in the marriage contract; Among those who considered it a condition of validity (the right of God) that the contract cannot be performed without it, and it is invalid without it; This is the opinion of a few jurists, and among those who considered it a necessary condition (the human right); A woman or her guardian may consider her or drop her; On the basis that it falls within the scope of individual freedom and personal choice; This is the opinion of the majority of jurists, and among those who did not consider it at all; This is their weakest opinion, On the other hand, we find that most of the Arab personal status legislation stipulated competence in marriage and organized its provisions, while others did not provide a text for it in its legislation, including the Algerian Family Law. This study came to show the jurisprudential adaptation of efficiency between spouses, and stated the position of Arab positive legislation on it