A Study of Family Law implementation in Morocco based on research at the First Instance Court of Oujda and The Cassation Court of Rabat
Dr.s Hasna Boutkhil & Rachid Sbia
Report Summary
In the aftermath of independence, the first open project was that of family law. Its first codification came into being under the leadership of King Mohammed V and gave rise to the birth of the famous Moudawana or the code personal status in 1957/1958. The aim was to take a slight step towards modernity by codifying Muslim law in its Maliki interpretation. The dahirs (Royal Decrees) of 1957 and 1958 reflect the new legislative practice in independent Morocco. This practice consists in replacing the collections of the fiqh (religious scholarship) by a codification without definitively breaking the link. The gaps revealed by this Moudawana were mainly due to the fact that it was only designed for the spouses' marital relationship.
Inequality and discrimination against women and girls in this old text (polygamy, repudiation, guardianship, the right of custody of children, etc.) and its immutability of have raised debates in the 80s and 90s and were considered unfair. The first demands for change in some articles of the Moudawana were perceived as impious and sacrilegious by some traditionalist religious and political circles. In 1993, King Hassan II allowed a reform, although partial and limited, to take place in family matters. Although this reform was minimal, its main objective was a breakthrough as it set a precedent for future and more substantial changes to the Code of Personal Status.
The year 2004 was marked by the entry into force on February 5th of the new and renamed Family Code which brought about significant reforms in the laws regulating relations between the different members of the family unit. The Moroccan legislator, without detaching itself from the old rules, has introduced new norms partaking of a modernist and egalitarian spirit, which that can be deduced from the affirmation of the “joint responsibility” of the spouses over the family, the introduction of a minimum age of marriage - 18 years for both sexes - the abolition of paternal/male guardianship for the adult woman, the extension of the grounds for seeking a divorce through the "chiqaq" procedure and consultation on the management of the commons, etc.
The aim of this study is to highlight the degree of perception and application of the provisions of the Moroccan Family Code by Moroccan magistrates. The complexity of the problems that inspire this study proposes to evaluate the judicial practice to try to detect not only the advances but also to highlight the obstacles. The cities of Oujda and Rabat were chosen to serve as a laboratory for this study. The cases studied are ultimately indications of the effectiveness of the application of family law at the national level. The problem is not only legal but also cultural. Reforming a legal text is one thing, applying it to society is another. The issue is whether the feminine question can find any solutions in the family code through an examination of marriage and divorce.
I. Marriage
In its effort to modernize family law, the legislator ensured the preservation of the Islamic values that found Moroccan society and the rules of social morality. And since the coming into force of the family code, the family institution as represented by this text is a conception that is far from being present and that does not seem be accessible for the majority of the population. Indeed, large sections of the population still live outside the framework of these new legal norms and the representations they convey.
But whatever the changes in society and the contradictory currents that cross the family institution making it a fertile ground for the struggle between tradition and the modernity, marriage is established as a true institution. It remains the only permitted way to constitute a legitimate family. The adjective here is very important, it is marriage and it alone, that assures the family its legitimacy. A place of choice is then given to marriage by Muslim ethics and Moroccan law thus contributing to the preservation of the traditional family order and reflecting the will of the legislator to include the family institution in its original setting.
Moreover, Moroccan law has reserved a highly regulated framework for marriage. The way in which the family code deals with marriage, its dissolution, its effects, is indicative of the interest it gives it. It is also significant that it devotes to the definition of marriage and especially to the way it is conceptualized, an article placed on the frontispiece of his first book. Article 4 of the Family Code states: "marriage [covers] a pact based on mutual consent with a view to establishing a legal and lasting union between a man and a woman. Its goal is life in reciprocal fidelity, purity and the foundation of a stable family under the direction of both spouses ... " The choice of the term pact (mitaq) is not neutral. Indeed, this term has a much more solemn resonance than that of a contract, even a legal one, which results in the exchange of supply and acceptance. This amounts to affirming the creation by the family code of a formalism of the marriage act that did not exist previously. It is an Act whose formation and effects are now governed by law. The insistence on legalism seems to be explained by the proliferation, at a certain time, of consensual or traditional or customary marriages, especially in certain Islamist (religious extremists) circles. The traditional marriage between a man and a woman remains the only act of union admitted and regulated by the Moroccan legislator. This limitation is mainly justified by the sanctity of marriage and the protection of the interests of women, children born or unborn and especially third parties.
It should also be noted that despite the importance of the various issues surrounding this subject, we will focus on three indicators in our study of marriage in Moroccan legislation. The first concerns the marriage of minors, the second relates to polygamy and the third relates to action in recognition of marriage. These three questions essentially affect the philosophy of the reform and their anachronistic nature is out of step with the spirit of the text as well as the principles of human rights.
a) Polygamy
Far from eliminating it, articles 40 and 41 of the family code contain it within limits which should, in principle, make it difficult to achieve. In addition, maintenance of tetragamy is not explicitly specified. Article 39 (2) merely provides that in cases of impediment to marriage the union "shall have a number of women superior to that authorized by Shari'a (Islamic law)". According to the family code, the remarriage of the spouse still engaged in the ties of a marriage is no longer a right but a permission subject to an authorization by a judge. This authorization may be refused if the "necessity" is not proven. However, practice shows that "necessity" is a notion that is open to interpretation. It is subjective, therefore likely to be related much more to the desires of the applicant, without further consideration.
In the end, as long as the path to polygamy is open, we will never be safe from its illicit circumvention and instrumentalization in the marriage of minors.
(b) Marriage of minors
According to Article 19 of the Family Code "the marital capacity is acquired, for the boy and the girl enjoying their mental faculties, eighteen Gregorian years past." In principle, for the age of marriage, the woman and the man are placed on an equal footing; there are no more distinction based on gender. The matrimonial capacity is aligned with the legal majority and now set at eighteen (Article 209 of the Family Code).
However, an exemption from age is provided for in Article 20. It benefits both young males and females. Although subject to an authorization by the family judge to make a reasoned decision explaining the interest and the reasons for the exemption, the marriage of minors has been converted from an exception to a rule from 7 % of total marriages contracted at the national level in 2004 to almost 12% in 2013. This rate increases relatively from one year to the next instead of decreasing. Nearly 90% of marriage authorization applications were admitted that same year, of which 99.4% were submitted by underage girls. Experiences and practice, however, vindicate questioning the marriage of the minor person and the dangers it represents for her/his health and the disruption that it causes in her/his life, as long as the authorization of marriage can only be refused when the circumstances or the extreme youth of the person concerned require that one opposes its maintenance in the name of the supreme interest of the person.
c) Legal recognition of marriage
Since the implementation of the family code, only a marriage certificate is valid proof of the conjugal relationship. Proof of marriage by testimonial act or by the exchange of confessions between the parties cannot take the place of a marriage certificate. However, if for imperative reasons the document of the marriage certificate has not been drawn up in due time, each or both of the spouses may request the court's recognition of their marriage.
In this sense, the provision in Article 16 is more precise: are considered in particular as constituting legal evidence: expertise (including medical, such as DNA evidence) and the hearing of witnesses. The pregnancy of the woman and, of course, the existence of children will be taken into consideration in these actions in recognition of marriage.
Somewhat surprising, however, is the restrictive provision of the last paragraph of Article 16 which limits the admissibility of actions in recognition of marriage to a transitional period not exceeding 15 years from the entry into force of the Family Code. . The Moroccan legislator seems to have wanted to clear the pending cases, but the fraudulent use of this provision has allowed to circumvent the law on the authorization of polygamous marriage and that of minors.
II. Dissolution
Through the analysis of the jurisprudence prior to the Family Code of 2004, it appears that the triggering of divorce proceedings by the wife was a real obstacle course because of the dead- end the Code of Personal Status constituted in this matter when it comes to prove the wife’s allegations and also the slowness of the procedures. Today, new provisions for disunity are being opened in the same way for men and women.
Unlike the old text that offered the couple in difficulty no alternative but to terminate the conjugal union abruptly by repudiation pronounced unilaterally by the husband, or (in a very limited way) by judicial divorce. Divorce for Disagreement allows either spouse to go to the judge to explain the dispute with their spouse.
a)Repudiation: talaq
By placing a comparative perspective on the different forms of dissolution of the conjugal bond, unilateral repudiation is mainly characterized by a complete absence of the woman in the decision-making process. The wife is not called upon to consent or refuse the break. At most, she can seize the court to assess the harm, but without any power to influence the decision to unilaterally break the marriage. The right to resort to the judicial institution is by no means guaranteed.
Indeed, the interest of a repudiation resides above all in its quality of means allowing to end a union that has become difficult. This prerogative reserved to the man in Moslem law was not called into question by the family code which contented itself with subjecting it to the control of the judge.
However, through the new institutions, the legislator has developed new practices either to limit access to conventional institutions whose consequences are harmful or to circumvent a religious prescription whose failure to comply constitutes a violation of a divine order or act prohibited. We focus on two modern institutions to elucidate the legislative technique in this matter: divorce for discord, divorce by mutual consent.
b) Divorce for discord
Divorce for discord or Shiqaq is a major innovation of the Moroccan code of the family. The cause of this divorce is not precisely defined. It is not a question of any dispute but of a dispute that makes family life impossible, a dispute which, unresolved, leads to separation. According to Article 94, this is a dispute between the spouses and which could lead to their discord.
This form of divorce is similar to unilateral repudiation with the notable difference that it is open to both spouses. The practice has revealed that spouses prefer to resort to divorce for discord rather than unilateral repudiation to the extent that it is easier to resort to this form of divorce that does not require justification rather than to give a real and serious reason to justify the act of repudiation. This follows from a judgment of the Court of Cassation which refused to verify the reasons which led to a discord by deciding that any challenge in this sense is unacceptable.
In the same sense, divorce for discord opens the possibility for the husband to free himself from a financial burden that falls on him in the event of repudiation. The Shiqaq is an irrevocable divorce that unlocks the marriage, since any divorce pronounced by the court is irrevocable. If the spouses wish to resume the marital bond, the spouses must contract a new marriage, it is not enough for the man to take back his wife under the right of option; all the essential conditions must be met again to contract a new marriage. Many findings can be drawn from the analysis of decisions on judicial divorce because of discord: Men and women do not hesitate to resort massively to this new mode of dissolution of the bonds of marriage. This implies the risk of a drift to the benefit of the husbands who bring divorce lawsuits for discord to get rid of the financial burdens resulting from the other modes of separation including the consolation gift and the housing costs of the wife during the retirement of viduity. In any one of two cases, women give up their rights resulting from divorce.
However, one of the remarkable findings is the extensive application of the notion of Shiqaq by Moroccan magistrates. The actual responsibility lies with the legislator who uses “divorce for discord” as it limits the discretionary power of the magistrates on the disputed facts since they are obliged to pronounce the divorce after the failure of the conciliation and the end of the procedure.
The Shiqaq divorce could have been the only form of divorce maintained by the family code since it absorbs all the other forms of divorce which are only a dispute leading to the disunion. However, it is in an effort to conform to Islamic Jurisprudence that this new mode of divorce is not the only form maintained in the code, and in order not to erase ex officio the different modes that existed in the collections of classical fiqh and which have been taken up by modern legislation. This an obvious attempt to balance traditionalism and modernism.
c) Compensation divorce khol'a
The word khol'a derives from the Arabic verb khala’a, literally to remove, and is generally used to signify the action of removing a garment. The khol'a is “agreed repudiation” or repudiation in exchange for compensation. The agreement of wills may, moreover, take other forms in so-called agreed repudiation or "with compensation". This type of divorce is generally requested by the wife from her husband during the marriage, and in return she renounces the material benefits due to her, such as the balance of the dowry or the amount of expenditure made for her maintenance and not yet paid by the husband. Compensation can also include any property given by the wife to her husband. The concept of khol'a in Morocco is not the same as in other Muslim countries. It necessitates the agreement of the husband. If the latter does not agree with the principle of divorce, even if the wife waives her right, she must resort to divorce proceedings for reasons of discord or to one of the five other causes cited in the family code. The effects of khol'a depend on the agreements reached. The marriage is dissolved immediately, the husband has no right over his wife; she can remarry; the spouses if they reconcile must contract a new marriage with a new dowry.
Conclusion
Thirteen years since its implementation, the Family Code has raised real hopes for justice and fairness, but also revealed a diversity of views and opinions regarding its application. Admittedly, this code has tried to respond to certain difficulties due to the application of its texts but it still comprises provisions with negative implications on the situation of women. Subjects such as polygamy and the marriage of minors still do not seem to be settled and remain real subjects for contention. And with the high rate of illiteracy, especially among women, the implementation and sociological acceptance of new rights means that important means of popularizing the law are involved. Courts are overwhelmed by the number of cases before them and the mentality of family judges does not seem to easily evolve.
However, these realities should not obscure recent progress. The negative aspects currently prevailing in judgments pronounced concerning marriage, divorce, alimony and child custody should not diminish the effort provided by a large number of magistrates of different courts in the implementation not only of articles of the family code, but also of its reform philosophy and the spirit of its text.