New Family Code: protecting women, children and families
Morocco, Politics, 2/5/2004

Provisions in the new family Code, formerly known as the Mudawana, which was first announced by king Mohammed VI on October 10, and unanimously adopted by both parliament chambers, come to uphold equality between men and women in terms of family responsibility and protect the rights of children and the family cell.

The new code places the family under the joint responsibility of the husband and the wife instead of the husband only and suppresses the stipulation submitting women to the guardianship of a male member of the family.

It also establishes equality between men and women with respect to the minimum age for marriage, which is now set at 18 years for both instead of 15 years for women and 18 for men, under the old legislation.

Repudiation and divorce will become a prerogative that can be exercised as much by the husband as by the wife while under the old legislation they were left to the discretion of the husband only, and were often exercised in an arbitrary way. The new law adopts the principle of divorce by mutual consent and under judicial supervision.

Another provision drops an obsolete tribal tradition favoring male heirs in the sharing of inherited land, making it possible for the grandchildren on the daughter's side to inherit from their grandfather, just like the grandchildren on the son's side.

The girl just like the boy, shall have the possibility to freely choose her custodian at the age of 15. This article suppresses the bias in favor of the boy, who can currently choose his custodian at the age of 12, whereas the girl must wait until she is 15.

Polygamy, another sensitive issue in Islamic societies, is allowed, but subject to the judge's authorization and to stringent legal conditions. The judge must make sure that there is no presumption of iniquity. He must be convinced of the husband's ability to treat the second wife and her children on an equal footing with the first, and also ensure that they enjoy similar living conditions. The woman now has the right to condition her acceptance of marriage upon a pledge by her husband-to-be to refrain from taking other wives.

As a further protection of the family cell, the Family Law provides for the public prosecutor to be a party to every legal action involving the enforcement of Family Law stipulations. It also calls for taking arrangements to deal with emergency cases during week-ends and holidays. The creation of family courts and the establishment of a family mutual assistance fund are other arrangements that shall contribute to effective enforcement of the Family Law.

The new legislation protects women's rights by making repudiation conditional upon the court's prior authorization and enhances the chances for reconciliation, both through the family and the judge. It also requires that all monies owed to the wife and children be paid in full by the husband before divorce can be duly registered.

Verbal repudiation by the husband is no longer valid, as divorce is now subject to a court ruling. Under current legislation, repudiation has been an exclusive and unrestricted right of the husband.

A novelty introduced by the new law lies in the sharing, between husband and wife, of the property acquired during marriage. While confirming the principle of separate estate, the law makes it possible for the couple to agree, in a document other than the marriage contract, on how to manage and develop assets acquired during marriage. In case of disagreement, they shall refer to the judge, who shall use elements of evidence to assess each party's contribution to the household capital acquired during marriage.

Concerning for Moroccans residing abroad, marriage procedures are to be simplified as the marriage contract is to be drawn up in the presence of two Muslim witnesses and in accordance with the procedures in force in the country of residence. It is then registered with the proper Moroccan consular or judicial authorities. The new family Law also recognizes the legal validity of foreign divorce documents concerning Moroccans residing abroad, provided they are in keeping with the relevant general regulations in force in the Kingdom. Under the old legislation, Moroccans residing abroad would go by the procedures and conditions applicable to their fellow citizens in Morocco in order for the marriage contract to be valid. This results in countless disputes and litigations between husband and wife as well as with the authorities in the country concerned.

In addition, provisions containing a reference to international agreements on children's rights ratified by Morocco, have been inserted.

As regards child custody, the law innovates by giving the woman the possibility to retain custody of her child, under certain conditions, even upon remarrying or moving out of the area where her husband lives. She may also regain custody if the reason (voluntary or otherwise) which caused her to lose this right disappears. Under the old legislation, the woman irrevocably loses child custody in such conditions.

The new law protects the child's right to acknowledgement of paternity in case the marriage has not been officially registered for reasons beyond control, by expanding the scope of the legal evidence to be submitted to the judge. In the past, there was no provision for recognition of children born out of wedlock. The only accepted proof to establish paternity has been the testimony of 12 witnesses, a complicated and archaic exercise.

The Family Code also includes provisions ensuring that the child gets suitable accommodation consistent with his or her living conditions prior to the parents' divorce. This requirement is separate from the other alimony obligations (nafaqa). The alimony used to consist of a paltry lump sum and did not specify how much should be allocated to the child's accommodation.

The new law also enshrines the principle that Moroccan Jews shall be governed by the provisions of the Hebraic Moroccan Family Law.

The new Family Law uses a modern form of wording removing degrading or debasing terms for women. Thus, women become men's partners in rights and obligations, in accordance with the firm determination of His Majesty the King to ensure that women are treated fairly, to enhance the protection of children and to preserve the dignity of men.

Previous Stories:
  House of advisors in Morocco adopts Family Code   (1/24/2004)
  House of representatives unanimously adopts new family code   (1/19/2004)
  Democracy, rule of law, pillars of Morocco's policy, minister   (1/14/2004)

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