Read the text of a lecture presented by the Muslim Institute and delivered by Dr Rajaa Naji el Mekkaoui, an expert in family law at the Université Mohamed V in Rabat and one of the architects of the mourchidat programme Moudawana (Morocco Family Code): Symbol of reconciliation between sacred religious texts and constraints of our time. The lecture provides an overview of the circumstances that speeded up the reform of the Family Code in Morocco.

Fundamental changes and societal shifting trends: the Moroccan society has undergone fundamental changes since 1957, the year in which the former Moudawana (Code of Personal Status and Successions) was enacted, and had been impatiently awaiting a virtually radical reform of its legal arsenal that governs personal and family life. However, this same society, which split up over the subject of the path to be taken (whether the path of modernism or conservatism), was in the midst of fierce controversy. To put an end to this fuss, the matter was referred to the arbitration of His Majesty the King (the Commander of the Faithful), who appointed a joint multidisciplinary commission (composed of religious scholars, judges, lawyers, legal practitioners from both sexes, etc.) with the exclusive mandate of reforming the Moudawana (Family Code)...

In addition to the royal multidisciplinary commission, a number of other authorities were mobilised to ensure the compliance of reform with Islamic law, primarily the Ministry of Awqaf (religious endowments) and Islamic Affairs, which maintained close scrutiny of the commission’s work1, and the King’s advisors…

The reform, which was meant to be a comprehensive review, had not limited itself to dealing with feminist claims, it also dealt with the framing and content and applied the philosophy instituted by Islamic law, which was the first to introduce equality, justice and equity into gender relations. Thus the reform had the merit of harmonising the Code, which governed family matters, which notwithstanding the (sketchy) amendments made (particularly in 1993) suffered certain shortcomings, mostly the lack of enforcement arrangements (procedural or others).

The said reform was presented by His Majesty the King2, in his capacity as Commander of the Faithful, in a speech containing wide references to Quranic verses, Prophet’s sayings and Sharia. His Majesty the King explained that he had relied on Ijtihad (interpretation of religious texts), and substantiated his position in these words: "I cannot allow what God has forbidden and forbid what God has authorised", intimating thereby that the reform was based exclusively on Islam. This was sufficient to protect it against any protest in the name of religion and to relieve the situation.

Beyond any reading or interpretation that we might give to the (internal and external) conditions, which precipitated and orchestrated the reform of the Moudawana, whose origins are deeply-rooted in Islamic law,  we must confess that it comes within a policy initiated by His Majesty the King who wondered, in a speech delivered less than a month after his accession to the throne: "How can we hope to achieve progress and prosperity for a society if the women, who make up its half , have their rights scorned?"

In fact, everybody knows the particular importance his Majesty attaches to the issues of family, children and social matters in general. His Majesty has set off the alarm bell and called to combating the deterioration of the situation of children, particularly the children of divorced parents, and specifically denounced the slow enforcement of court judgments in connection with support matters (nafaqa). This emphasis translated into several legislative interventions3.

Throughout this process, the great challenge, however, was to reconcile modernity and our system of reference, legislate for a society in full expansion, which is undergoing massive changes, while remaining faithful to Islam. The only possible way out was: the inescapable Ijtihad, which allows for the exegesis of the Source Texts. It is, indeed, the only way to preserve the cohesion of the Moroccan society. Thanks to this ingenious formula, the test was passed and the goal of the adhesion of all was realized, namelythe adhesion of lawyers, Islamists, feminists, members of parliament, and society at large. The worldwide admiration and praise of the process are every bit as relevant todayamong(governments, politicians, researchers, mass media, NGOs, private individuals, UN agencies, etc.)…

The Moudawana managed to get through after several restructurings, faithful to Islamic law, while being respectful of the agreed claims and in compliance with the international and bilateral agreements ratified by Morocco, such as: The 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the 1989 International Convention on the Rights of Children, the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption.

We hardly need repeating that Morocco's international commitment is made in line with its Islamic reference which is the main source. It goes without saying that the socio-cultural and economic changes are striking. In the globalization era, Morocco is living constant structural reforms against the backdrop of fundamental changes, which required finding relevant answers to new problems affecting the family in a society in transition. In this connection, the Moroccan experience was pioneering and inspiring for many other countries. Incidentally, its educational significance is evident and the daring touch and wisdom of our laws have served as model in France4, Algeria5 and elsewhere.

The philosophy of reform was explained in the far-sighted Directives of the historic Speech delivered by His majesty the King on 10 October 2003, which announced the completion of drafting this famous Bill. In that prominent Speech, which will be the preamble to the Family Code, His Majesty the king put greater emphasis on family cohesion as key objective of reform. To this effect His majesty pointed out that “These reforms should not be perceived as one camp wining victory over another, but rather as gains for all Moroccans… As King of all Moroccans, I do not make legislation for a specific group or party. I rather embody the collective will of the Oumma, which I consider as my great family…The Family Code should not be viewed as a law enacted for women only, it should rather be seen as a legislation for the whole family with father, mother and children all included. The code reflects the commitment to free women from the injustices they suffer, protect the rights of children and preserve the dignity of men”.

The innovations introduced by the Moudawana

Key achievements: The many achievements can be grouped together along the following lines:

Respect for women’s will and dignity at the time of marriage and divorce (by increasing the age of marriage; insisting on the will of the bride and accompanying her marriage conclusion by measures that would protect such will; recovering the true meaning of guardianship in marriage [so much confused with the bride’s will], etc.;

The optional resort to guardianship in marriage ;

Restriction of polygamy;

Recognition of marriages of overseas-living Morocco Nationals;

Reform of divorce and guarantee of rights;

The management of property acquired after marriage;

Rights of children;

Paternity of children born during engagement, etc.

1st Axis: Equality and dignity of married couple

In keeping with the saying of the Prophet Muhammad (PBUH) “women are equal to men before the law”; “Only an honorable man will u them (women); and only an ignoble man will humble them”, the new Family Code rejected all concepts that are prejudicial the human dignity of women ...

Similarly starting from the Hadith: “Each of you is a shepherd and each is responsible for his flock ... A woman at her husband’s house is a shepherd, responsible for her flock..”6, the Family Code placed the family under the joint responsibility of both spouses.

Then, in accordance with the provisions of the Malekite School of jurisprudence, equality was established between women and men with respect to the age of marriage, which was equally fixed at 18 yearsof age, and between girls and boys under custody, who may choose their custodian at the age of 15.

Equality or obedience?

We have so much believed, under the impact of widely- held customary rules, that obedience is an absolute duty of the Muslim woman, and that Islamic law requires the wife to blindly submit to her husband’s orders, no matter how excessive and unlawful these orders are. Whereas, the pure sources of Islamic law calls the couple to dialogue, consultation and understanding, even in case of dissent7: “...if they have agreed with each other in a fair manner ...” (Quran, Al Baqarah Surah, verse 233).

Better still, we find in those pure sources a strong call for consultation between the couple and the fulfillment of the mutual commitments and obligations. Here’s an example from the Quranic revelations, which go along that line by saying: “…And do not harass them with a view to making their lives a misery… And take counsel with one another in a fair manner...” (Attalaq Surah, verse 6). Consultation is undoubtedly inconsistent with blind obedience.

Exegetes have for long pondered the expression “Wa'etamirou” -وَأْتَمِرُوا, (take counsel with one another). On the basis of other verses, (such as … neither shall a mother be made to suffer because of her child, nor, because of his child, he who has begotten it8, they have inferred a commandment to the spouses to engage in dialogue and take most congruent decisions to defend the supreme interests of the household and avoid any possible damage to any member of the family.

Therefore, the concept of obedience within the family nest, in Line with Islam, consists in respecting the divine precepts by observing them faithfully, taking account of mandatory legislative rules and public order, and by duly honoring one’s commitments. Proof of this is included in the Quran itself which unequivocally ordains that believers should obey no other person’s order if such order goes counter to the divine rules and public order, even if it be issued by one’s own parents, let alone the husband: "We have enjoined upon man goodness towards his parents…yet should they endeavour to make thee ascribe divinity, side by side with Me, to something which thy mind cannot accept [as divine], obey them not …in the end, unto Me you all must return; and thereupon I shall make you [truly] understand all that you were doing [in life]." (Luqman chapter, verses 13-14)9.

The same precepts are applicable to the matrimonial relationship. There is no ground for subjecting one party to another; there is rather a recurrent call to dialogue, consultation, mutual understanding, kindness, generosity, devotion and sacrifice. The concern, in each decision made must be the safeguarding of the supreme interests of the family, and the observance of legal, ethical and religious rules...

Obedience, if any, it must be paid to the provisions of the law, which are in compliance with Allah’s Orders (public Order) and not to the orders of the husband acting on whims which might be inconsistent with Sharia الشريعة.

Unlike what the current Moudawana is being blamed for, in terms of Islamic-law abidingness, after the above clarifications, we see that by abolishing the concept of blind obedience considered as a primordial and boundless duty of women, the Moudawana has indeed cleansed the rules of Islamic law from certain inadequate customs and exegesis.

Many other Hadiths follow the same trend: affinities with women (mother, daughter, sister, wife, etc.), without omitting, however, to require from women to show reciprocal good manners, especially towards their husbands. That is what I would call cultural, didactical, educational and ethical rules that reinforce the legal rules in this area.

Joint management of the household

All that has been mentioned above on the subject of confusing the Islamic rules with customary law also concerns the famous rule whereby the family is viewed to be placed under the exclusive responsibility of the husband, while wrongly attributing that rule to Islam. By reviving the pure precepts of the Islamic law, the new Family Code boldly decrees that the family is from now on placed under the responsibility shared by both spouses10.

Quite rightly, its base is connivance and justice instead of competitive equality; complementarily instead of equal division of roles and responsibilities; and goods manners instead of injustice, exploitation and humiliation. The aim is the household balance and stability as well as the welfare and safety of children.

As a result, consultation in decisions relating to the management of family affairs, children and family planning has become, in the pattern of the Islamic philosophy, a duty to be discharged by both husband and wife, with a view to safeguarding family interests.

To be specific by listing the mutual rights and duties of husband and wife, Article 51 did not fail to broadly specify the unconditional commitment of both husband and wife to take on all household responsibilities, in accordance with Islamic teachings, which can be summarized in the following Hadith of the Prophet: "Each of you is a shepherd and each is responsible for his flock ... The ruler is a shepherd, responsible for his flock. A man in his house is a shepherd, responsible for his flock. A woman in her household is a shepherd, responsible for household members... "

In addition Quranic verses and Hadiths unequivocally point out that gender equality in Islamic philosophy is an equality in obligations and duties, and not just an equality in rights and prerogatives: “...And women shall have rights similar to the rights against them, according to what is equitable;” (Al-Baqara chapter, verse 228); “the believers, men and women, are protectors of one another” (At-Tauba chapter, verse 71).

Thus and following the example the tenets of the Islamic law, the Moudawana sets out that it is the duty of the wife to assume, with her husband, the responsibility of managing the affairs of the household and the education children (Article 51, paragraph 3).

2nd Axis: Optional Matrimonial Guardianship

Matrimonial guardianship (wilaya) has become optional: it is an exclusive right of woman, which she may exercise or otherwise conclude her marriage contract in person. To better pin point the position of the current Moudawana with regard to our system ofreference, we will review the Islamic precepts that govern matrimonial guardianship:

Short overview of matrimonial guardianship in Islamic law

Details of consent and wilaya: In language and terminology, Wilaya, unlike what people think, does not mean forfeiting the will of the prospective wife or substituting it by the will of the matrimonial guardian. It rather means: Guardianship in marriage, support, consolidation and protection. To this effect, the Quranic verses and Prophet’s Hadiths are conclusive: it is the prospective wife who must give her consent; otherwise marriage shall be null and void. True to the sound tenets of Islamic law, some Books of hadith went to the extent of writing chapters under the title of “The Prohibition of marrying off a girl without her consent”11.

That is not mere coincidence or happenstancethat Islamic law has made the exchange of consent the only pillar of marriage. Such will entails that we should completely dismiss any idea meant to substitute the presence of the matrimonial guardian for receiving the consent of the couple. Having said this, the rights of the matrimonial guardian, in Islamic law, are limited to the support of a woman during her entry into marriage, after she has expressed her free, informed and continuous consent (which is the only pillar of marriage).

However and because of the declines, which the Muslim Umma has suffered, due to several cultural reasons, which also include customs that have not tolerated the presence of women upon entry into marriage and have made the marriage ceremony an exclusively male ceremony, marriage guardianship has in practice become a “blank signature” in favor of the matrimonial guardian. In the end, the exchange of consent became, in the collective memory, identified with matrimonial guardianship. Thus matrimonial guardian forfeited the right to consent and concluded marriage contract, without the girl’s knowledge or against her will. Thus girls had been, for centuries, completely removed from the scene12. This excessive (connotation) given to the Wilaya is still engraved in memories, unfortunately even in the memories of the intellectually favored circles.

The Moudawana of 1957 (although it was modelled on the Islamic law) has been fed by these very customs that exclude women from the said ceremony, although it temporarily talked of the wife’s consent13.

Contrary to what is rooted in the collective memory of the Islamic world, matrimonial guardianship shall never substitute for the exchange of consent, regarded as the only constitutive element of marriage and can, in no case,  be an alternative to the bride’s consent. It is time to dispel this prevalent deep confusion and secular mixing of consent and Wilaya.

At first sight, it should be stressed that there is neither in Quran nor in Sunnah explicit, unchanging and definite texts which directly and clearly deal with matrimonial Wilaya, make it a prerequisite for the validity of marriage, or deal with the effects and nature of marriage contracted without wali.

I should be noted that for the different Sunni schools of juruisprudence, the bride’s consent is the pillar of marriage, except that for some, her consent is deemed to be insufficient to for the validity of marriage. This is because the presence of the wali is remains mandatory. There are three opinions of the Sunni schools of jurisprudence on this issue, namely that which groups the Maliki, Shafi'i and Hanbali schools of jurisprudence (which are more or less conservative), that of Hanafi school of jurisprudence (which is tolerant) and the school of jurisprudence of Abu Thawre Shafi'i (mediator). It is inferred that matrimonial guardianship, as a prerequisite for the validity of marriage, does not enjoy the unanimous support of jurisprudents even within the Maliki14 School itself. These differences of views reflect the absence of an authentic text in the Quran or in the Sunnah, which establishes the system of matrimonial guardianship in firm terms. This situation left much leeway for interpretation. In Islamic law (Fiqh), many complex controversies have taken place on this issue and the matter of Wilaya was, over time, very disputed.

The new Moudawana, influenced by the heated debate initiated by jurists on lack of knowledge of the main tenets of Islamic law, took over the constitutive component of marriage (the exchange of consent) and implemented it. The 2004 reform has in fact only revived one of the tenets of the Islamic law which was doomed to oblivion and which seeks to ensure respect for the will of women as well as the will of men. Without completely abolishing the wilaya, the current Moudawana has been keen on bringing women’s will, which was overshadowed with the passage of time, back into favour.

Based on several Quranic verses and Prophet’s sayings according to which women have the will and the freedom to conclude marriage in person or decline it (“Do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms”15), the new code has made matrimonial guardianship (wilaya) a right specific to an adult woman, who may exercise it according to her choice and interests. This means that women can conclude marriage in person or willingly commission another person to do it. In this connection, the Ministry of Awqaf has explained the Islamic foundations of the wilaya16.

3rd Axis: Restriction of polygamy

The gracious, just and fair Islam was the first to regulate and restrict polygamy, which 15 centuries before was accepted by all the existing religions and customs and was exercised with no limitation whatsoever. By way of restriction, Islam put a set of stringent conditions on polygamy, which were directly taken from the Quran. Allah has resolutely ruled out the premise of total impartiality among co-wives.

Since fairness and impartiality are pipe dreams, the conditions of validity of polygamy are nearly unattainable, from legal and practical standpoints. ThusIslamic law was the first legislation to put limitations to polygamy.

Lessons learned from the sources of Islamic law: To gain a better understanding of the Islamic philosophy, which is unfortunately ignored or explicitly blocked out, let us turn our attention to the main texts governing that philosophy:  "If ye fear that ye shall not be able to deal justly with the orphans, Marry women of your choice, Two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess, that will be more suitable, to prevent you from doing injustice'( or in order not to make your family support worse)(Surah of An-Nisa' (Women), verse 3).

It is understandable why polygamy would be permissible, only to meet difficult social situations  or to address much complex phenomena produced by the situation of children in difficult circumstances (such as orphans…), slavery, precariousness….  that had been prevailing before the advent of Islam. Marriage was one of many other solidarity institutions intended for the integration of abandoned children, slaves, etc.

Notwithstanding this state of necessity and social usefulness, the Quran being sure that equity is very difficult to achieve in polygamous families, and just after having opened that very limited point of relief in case of extreme necessity and for fear of the abuse of polygamy by men , the same Sourah of the Quran strongly warns that it is impossible for men to be impartial towards their co-wives, even if they pretend being able to do so and even if they do it with consciousness and stringency.  "Ye are never able to be fair and just as between women, even if it is your ardent desire: But turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in the air). If ye come to a friendly understanding, and practice self- restraint, Allah is Oft-forgiving, Most Merciful” (An-Nisa' (Women), verse 3).

From the two verses combined, we can deduce the following principles:  

*First, following the example of the Islamic legislative policy, the rules in the matter have been gradually introduced to avoid any disturbance of the social order. It is worth recalling that the context where polygamy was first legislated had been hostile to any restriction of this right that used to be widely, or even chaotically, exercised by males in pre-Islamic society. In a rational manner, the first call to polygamy was restricted to revealing the exceptional character of resorting to polygamy: in the event of fear not to be just to the orphans under the care of others, or in case of abusing the guardianship children are legally entitled to.

*Second, polygamy is banned in principle, unless it is proven, on good grounds, to be the panacea for dealing with complicated social phenomena. It is worth noting that the Islamic Law has made tremendous efforts earnestly and invested various institutions to combat slavery (in addition to prostitution, paedophilia, etc.). Polygamy is part of this multidimensionalstrategy.

*Aware that fairness is virtually impossible, the second verse wishes to recall that whenever unfairness is feared, it is recommended to avoid or prohibit having more than one wife.

Hence the case of necessity, in the Islamic logic, must be assessed at fair value17 (since the matter concerns a key theory of the Islamic Law). Knowing fully well that necessity is strictly controlled by Quranic revelations.  The Holy Quran states that:"... if a person is forced by necessity, without willful disobedience, nor transgressing due limits,- thy Lord is Oft-forgiving, Most Merciful" (Al Anaam, verse 145).

The conclusions drawn from the above-cited verses are also corroborated by the following Hadiths of the Prophet made when Ali, the Prophet’s son-in-law and husband of Fatima Zahra, expressed his desire to answer a marriage offer sent to him by a tribe, thus bringing a new wife to live with Fatima Zahra. The Prophet showed discontent and replied:   "Fatima is a part of me; Anything that grieves her grieves me, if you want to become polygamous, separate from my daughter immediately! In other versions, he replied No! and No! and No.... "

It is worth recalling that notwithstanding the fact that Islam exhorts believers to get married, on account of the virtues marriage brings to the individual and society, he never fails to advise them against marriage even with one wife, when material, moral or psychological circumstances do not guarantee the establishment of a stable and balanced family.

Here are some examples from the Quran "Let those who find not the wherewithal for marriage keep themselves chaste, until Allah gives them means out of His grace." (An-Nur, verse 32).

There is also the well-known Hadith where the Prophet says:  «O young people! Whoever among you can marry, should marry, because it helps him lower his gaze and guard his modesty (i.e. his private parts from committing illegal sexual intercourse etc.), and whoever is not able to marry, should fast, as fasting diminishes his sexual temptation”.

If marriage even with a single wife is not recommended in terms of the Islamic logic when marriage requisites do not obtain and when marriage virtues and goals are not achievable, how can one allege that polygamy is permissible without limitations despite the fact that the disastrous social consequences are clearly surmised?

Undoubtedly, it is the notion of fairness which makes the authorization of polygamy severely restricted. Since early times, some old legal commentators and religious scholars called for the restriction or virtually the prohibition of polygamy.

To conclude, the Quranic verses, the authentic Sunnah and moderate exegesis seem to concur on the prohibition of polygamy, whenever it is feared that it would threaten the stability of the family, or do injustice to the wife and children in particular.

The New Moudawana: An innovation or a revival of the system of reference?

By taking inspiration from the authentic sources of the Islamic Law and being based on the extraordinary wisdom of Islam and after a calm and intelligent reading of these sources, Morocco Family Code recovered the Islamic philosophy of polygamy. The Moudawana now allows the husband to marry a second wide only in case of force majeure, under strict or even drastic conditions and criteria and subject to the prior authorization of the judge. This attitude of the legislator (which is neither a total prohibition nor a bounbless authorization) is justified in many respects. The perspective is to avoid recourse to a de facto, but illegal, polygamy, as is the case in several countries, from North and South, which have totally banned polygamy.

Consequently, polygamy is legally authorized only in the case of a force majeure, subject to meeting several requisites and procedures.

In all cases, the judge seized of the matter by the applicant for polygamy, summons the first wife and asks for her consent. Similarly, the judge advises the second prospective wife that her would-be husband was already married and asks for her consent. Notwithstanding the positions of the parties concerned, the judge, who is required to ensure the welfare of the family, has discretionary power to refuse. The procedure to be followed is roughly speaking presented as follows:

The husband should submit to the Court a request wherein he states exceptional objective reasons justifying the legitimacy of his seeking  of polygamy;

The  said application must be filed with declarations and evidences of the husband’s financial situation;

The judge shall not authorize polygamy unless he makes sure of :

The veracity of the applicant’s allegations with regard to the exceptional purpose justifying his recourse to polygamy; 

The husband’s capacity to give fair and equal treatment to the two co-wives and their children and provide them with the same living conditions and care;

* In all cases, it is impossible for the woman whose husband got married to a second wife to petition for divorce on account of prejudice.

In return, the Court shall not authorize polygamy in the following cases:

When the wife imposes the renouncing of polygamy on her husband, in their marriage deed or in a subsequent agreement;

When the husband fails to give the grounds and reasons justifying  his application for polygamy;

When presumptions led us to fear that there would be injustice among the wives;

When the applicant fails to prove that he has sufficient financial resources to assume the normal financial burdenof catering for the needs of the two families in terms of maintenance and housing.

It should be pointed out that the husband must be capable of ensuring equality between the two wives in all aspects of life (not only the financial ones) and to assume all responsibilities (matrimonial, parental, educational, psychological and those related to affection or others).

Hence the Court must also care about the capacity of the polygamy seeker to manage the two houses with equanimity and fairness and exhaustively provide for all their moral, psychological and financial needs.

Thus it looks evident that by restoring the requirements for authorizing polygamy, the current Moroccan Code has, truly speaking, merely revived the equitable principles of the Islamic Law, and put an end to the flagrant injustice committed, in the name of Islam, by polygamists who had been unable to translate equity in the two houses into a reality. Once againthis shows the extent to which the customs (favouring masculinity) prevail over the prominent rules of the Islamic Law, due to ignorance and particularly the inadequate interpretation and application of Islamic tenets.

The popular saying 18“"الشرع اعطانا أربعة, literally (the Islamic Charia authorizes us to marry four wives), remains widely and faithfully adhered to, and reiterated by males in Arab and Muslim societies, worse still by their elite of religious scholars, and even by women themselves, without giving the slightest thought to the Islamic philosophy and equity.

4th axis: Management of property acquired after marriage

By referring to the rule on the management of the property acquired by the couple after marriage, while retaining the rule of separation of their respective property, the Family Code invites the couple to agree, in a separate instrument (which is separate from the marriage deed), on the method of managing the jointly acquired property.

Failing such instrument and in the event of disagreement, the judge resorts to the elements of proof produced by the couple (in accordance with the general rules of evidence), and takes into account the work of each spouse, the efforts each has exerted and the expenses each has incurred to contribute to the profit-yielding of family property, as set out in (Article 49 of the new code).

Accordingly contribution to the accrual of property includes only the property acquired19 after marriage, i.e. the property profit-yielding resulting from the work and revenues of each spouse, as well as from the efforts each has made and the expenses each has incurred in the accrual of family property20. It should be noted the rule of contribution to the accrual of matrimonial property was neither inexistent in Moroccan law before the 2004 reform nor was it extraneous to Islam.

Origin of the Rule of Contribution in the Islamic Law

Notwithstanding its sinking into oblivion, this right is however well known in Sharia (particularly in old jurisprudence) and is expressed in many terms connoting the idea of sustained effort21 and the acquisition of rights in accrued property-depending on everyone’s contribution– when several persons concur in the development of property. It more precisely refers to the right acquired by the wife (by dint of her work at home and/or outside) in the property which the couple has amassed after marriage. This is the definition of the rule of contribution in the accrued of property or the scheme of sharing property acquired after marriage.

Contrary to these fair teachings, traditions and customs have it that, during marriage, property, namely fixed property, is very often entered in the name of the husband. As long as relations are stable, it does not matter, in whose name the property is entered. But as divorce very often gives rise to feelings of animosity, and given also that only few women manage to prove their contribution in property or know that they have the right thereto, women very often go home empty-handed.

It is worth noting that the principle of the couple’s contribution, particularlythe wife, to the accrual of property, which for most people looks like an innovation introduced by the new Moudawana, is neither new nor extraneous to the Islamic Law. Furthermore the matter is not about customary law, as some often overstate with no good grounds. It has nothing to do with the principle of community of property, as incorrectly put forward by a number of journalists and feminists.  

This principle directly and/or indirectly draws on the sources of Quran, Sunnah and Traditions. It had been established at the dawn of Islam by the Caliphate Omar Ibn Al-Khattab, and then systemized by Imam Malek22. However with the predominance of customs, this Islamic principle sunk into oblivion. Over time, this principle had become obsolete due to its non-application. The main Islamic sources of this principle came as follows: 

In the Holy Quran, it is clearly ordained that everyone deserves what he earns by his own efforts and that he reaps the fruit of his labors: " That man can have nothing but what he strives for; that (the fruit of) his striving will soon come in sight... (An-Najm verses 39 and 40). In a closer meaning, the Holy Quran pointed out that: “Every man's fate We have fastened on his own neck." (Al-Isra verse 13). 

In its turn, the Sunnah is full of Hadiths (sayings) and Actions done or approved by the Prophet himself, such as the Hadith where the Prophet says: “Neither harm nor be harmed  ”23. This Precept, which over time served as guidance and catalyst, is a precept of a general order, which however serves to protect the right of the wife. A wife who has spent her life-time toiling to find herself at the end of her life course dispossessed of all that she had put a lot of effort into increasing. All this is nothing but an unlawful dispossession of others and a trespass, both prohibited by Islam. 

Traditions(Al Athar  الآثار)24 cite a famous case brought before the Caliphate Omar Ibn Al-Khattab, in his capacity as head of state, legislator and judge, in which he granted to the wife half of the property acquired during marriage25. Departing from this Fatwa (legal opinion), the criteria for distribution of inheritance have been thus completely reversed. 

In Morocco, the same principle has been copied and very largely applied by many religious scholars of the Pre-Rif (Jbalah, a stronghold of legal sciences), particularly the brothers Mohamad Ibn Ardoune and Ahmad Ibn Ardoune (ابن عرضون) and their maternal grandfather Ibn Khajjo  ( خجو أبو القاسم ابن), as well as many other jurisconsults of Jbalah region (علماء أهل الجبل). Later on, the same fatwa was adopted by the religious scholars of Souss region (another stronghold of Fiqh). 

Mohamed Ibn Ardoune (ابن عرضون), who was the judge of Chefchaoun26, was complained to by a woman, he did not hesitate to point out in his famous Fatwa that a woman farmer who helps her husband in farming in addition to her share in the succession shall have the right to a part of the fructus, while pointing out that this stand has been already taken by many of his predecessors, such as  Alqouri (القوري), the Mufti of Fes, and Ibn Khajjo (ابن خجو), the Mufti of the great tribe of Ghoumarah (one of the major tribes of Pre-Rif). Ibn Ardoune added that if there are children above 10 years of age (working age) and who are able to work shall be entitled to a part of the harvest depending on their contribution. 

The Fatwa of Mohamed Ibn Ardounen, which was formulated on the occasion of the husband’s death, was completed by his brother Ahamed, when he was called upon to decide a divorce case, wherein a woman went to him to ask if she is entitled to a part in property increase. In this matter, Ahamed Ibn Ardounen, who was acting with the same firmness, granted the wife a portion equivalent to the efforts she had contributed.

Those who were first to issue that progressive Fatwa in Morocco, few though they were, have not been disturbed by the divergence of views and retorts(sometimes severe) of their opponents who were attached to the prevaling custom. Advocates of this Fatwa argued that in other regions, customs were different and the Muftis were unable to enforce this precept (the rule of contribution) in an environment that does not value the work of women. 

5th Axis: Divorce and guarantee of rights

The originality of Islam lies in its recognition of the right of both spouses to divorce, though as a last option. The right to petition for Talaq (stated divorce), which is subject to many reserves, is equally granted to the wife and husband. If there is any discrimination, it benefits women, who have more options for divorce and are exempt from any payment to the husbands. Yet when the petitioner for the separation is a woman, she has to make several payments to the husband.

Talaq, as viewed by Islam, is authorized only under restrictive conditions which, if observed, help greatly reduce many social scourges. Like Islamic Law, the new Moudawana states that "divorce is the dissolution of marriage contract exercised by the husband and the wife in accordance with the conditions applicable to each one of them, under the judge’s supervision and in line with the provisions of the present law "(Article 78).

More particularly, besides Talaq, other rights and channels for dissolving marriage bonds are available to the wife, namely “Khôl’e” and court decided divorce. Unlike other religions, Islam guarantees for women more rights and means for breaking off marriage relationship, while urging the wife, in the same way as the husband, to use this damaging means only in cases of absolute necessity. In short, both men and women have the right to file for divorce. If the husband has the possibility of Talaq, the wife may resort to Talaq, Khôl'e and court decided divorce.

No matter how Shari'a tried to abolish repudiationpractices and oppressions suffered by women in pre-Islamic society, the socio-political, legal, economic and cultural decline howeverhas favored the re-emergence of such customs and practices, which are degrading for women. Therefore, the criticism levelled against the concept of Islamic talaq, does not draw a clear distinction between the Islamic philosophical concept, on the one hand, and the disappointing legacy of ancestral and contemporary societies, as well as the excessive customs, mores and practices on the other hand!

Accordingly, Shari'a considered null, void and of no effect the excessive repudiations customarily permitted. In order to discourage any trivial and excessive recourse to Talaq, Shari'a set the prerequisites for its validity (Orthodox Talaq). Failing these prerequisites Talaq proves to be ineffective: null (i.e. considered as heretical Talaq: Bid'ite)27. For the same ends and with a view to avoiding the overuse of Talaq, it charged its initiator with considerable compensation payments to the aggrieved party.

It appears that Talaq pronounced with no heed of its conditions is considered as Bid'ite and is therefore null and void. These conditions are in fact restrictions set by the Quran, which introduced them into the sphere of Public Order:  "These, then, are the bounds set by God - and he who transgresses the bounds set by God does indeed sin against himself” (65:1)

However, due to customs, a large number of jurists have unfortunately approved innovate and abusive Talaq innovated and assigned to it all the effects of Sunni Talaq (Talaq according to the Sunnah in which all conditions are observed). Such recognition of innovative Talaq has proved very damaging to the family. With the degradation of values, people have become so irresponsible that they pay more attention to the value of speech and do not care about its impact on their households. So, a trivial argument or disagreement tends to lead into tragicomic situations. It is no longer strange to see a lot of households split for trivial reasons28

In the Moudawana: By reviving the provisions of Islamic law, the new Family Code has turned divorce into:

A right equally exercised by husband and wife, according to the requirements and procedures specific to each one of them;

Talaq (pronounced divorce) can henceforth be pronounced only under the control of the court. Verbal Talaq is non admissible;

Enhancing the mechanisms of conciliation and mediation. To this effect, the court must be assisted by the family and any person or institution than can help in bringing about reconciliation;

By drawing on the Hadith: "Of permitted matters the most loathsome before Allah is divorce," men’s right of divorce (by way of Talaq) was restricted by reviving the norms and conditions aimed at preventing the excessive use of this right.

To this end, before granting Talaq authorization, the court must ensure that the divorced wife and her children enjoy all the rights they are entitled to, including compensation in the event of misuse of Talaq.

Moreover, with a view to promoting equality and equity between husband and wife, the right of divorce, which has been granted to the wife by Islam, but had fallen into disuse, has been revived and extended through the diversification of options which were increased to four:

The right of option (Talaq made of the wife’s own volition under judicial supervision);

Talaq by mutual consent, under judicial supervision;

The court-decided divorce on account of the husband’s breach one of the conditions stipulated in the marriage deed, or for harm caused to the wife ( be it  violence or any other abuses), failure to provide maintenance, desertion, in accordance with the general precepts of Islamic law promoting equity and harmony in matrimonial relationships;

A new divorce procedure was adopted: the Chiqàqor discord. This is actually the simplest way, cheapest, and the most flexible in terms of proof, although it was initially meant to settle disagreements and promote reconciliation.

In all cases, and irrespective of the initiator, causes and forms of divorce, before the registration of divorce, it is essential that prior permission from the court be obtained and all dues to the wife and children, be paid by the husband.

6th Axis : Rights of Children

In an unprecedented way, the Family Code has inserted the rights of children, as defined in the international conventions ratified by Morocco. Also for the first time emphasis has been placed on the interest29 of the child, which must be the framework for any decision or action concerning the child (Devolution of the right of custody...).

With regard to fixing child support, several criteria have been introduced or improved. 30Other elements have been added, hence mainly the situation of children before divorce, their living conditions, education and health….. Moreover the court must use all the available means (including expert valuation…..) to know the effective material situation of the party liable for support payment.

For the rest, inherent to the expenses incumbent upon the father is the obligation to fit out a decent housing for the children under custody, who shall continue living in the matrimonial home as children who are subject to the right of custody. They shall leave the matrimonial home only when the father has fitted out a decent housing for them or has paid the sum set by the court for the rental charge of a decent housing , which is commensurate with their  situation (before divorce).

Housing costs became therefore an obligation distinct from the obligations inherent to support and shall be determined irrespective of support or payment due on account of custody. In the event where the matter concerns a rented housing, the court shall determine the means for securing regular payment by the father.

Moreover, the disputes relating to support are of an urgent nature, since they have an expeditious procedure, which must be carried out within a period not exceeding one month.

All these new provisions draw take reference from the Quran and la Sunnah, which are rich and varied in terms of the precepts governing the parent-child relationship as well as defining the duties of parents. 

7th Axis : The paternity of the children born during engagement

Although engagement is merely a promise of marriage, which does not amount to marriage, it produces however the exceptional effect of the right of the child to the acknowledgement of paternity, subject to the conditions laid down in the Family Code, which seek to prevent the undue paternal filiations of children not of one’s issue.

8th   Axis : Improving approaches and procedures

"Anxious to meet the requirements of the efficient reinforcement of the Family Code  and aware of the significance of the adequate implementation of the terms of the law", His Majesty the King has sent a letter to the Minister of Justice, which pointed out to the fact that “ The implementation of this law, irrespective of the harmony, pertinence and the wisdom of the elements of reform it contains, depends on the following prerequisites:

Creating  fair, modern and efficient family courts31;

Drafting a practical guide which serves as a reference to the effect of standardizing the application of the provisions of the Family Code by these courts;

Securing further training of executives, particularly judges, given the discretionary powers and the responsibilities granted to them by the new Code.

Reducing the processing time of family issues and the enforcement of relevant decisions;

Creating premises suitable for family courts;

Setting  up a family mutual assistance fund...

….

Having set out the key achievements of the Family Code as well as the crucial approaches and procedures, which reinforce its implementation, and are all sponsored by His Majesty the King in person, what we have to do now is wonder about the achievement of these new provisions, which are so fair, pioneering and promising. As long as this reform has the quality of coming out accompanied with, the instruments and mechanisms required for its optimization.

How does the family court judge approach and assume these new responsibilities, which have sociological, psychological and other dimensions?  Are the family courts prepared for the achieving the goals outlined in the reform and preamble? Do the paralegal staff, litigants, civil society, mass media, and the common man (…) positively contribute to the achievement of the said goals and equity, or in short, to the promotion of the family?

These question, which I have for several times raised, on the occasion of the annual evaluations of the implementation of the Moudawanah as well as in my publications32, of which I present a summary. 

Working guide

From the reform of the Moudawana to Family cohesivness

I – The innovations introduced by the Moudawana

A- The main achievements

1- Women’s equality and dignity:

2- Restriction of polygamy :

3- Marriage of Overseas Morocco Residents:

4- Reform of divorce and guarantee of rights:

5- Children's rights:

6- Paternity of children born during engagement:

8- Management of acquired property: 

B- At the level of approaches and procedures

II – Has the new Moudawana really strengthed families

A- The first two years of implementation of Moudawana : Spectrum of Awkward positions

1- Family Courts : Heavy responsibilities and non proportioned means

2- Economic and social obstacles

a- The impact of customs and taboos (Hchouma)  

b- The repercussions of instigating and provocative awareness hightenning (...), (...),

c- Difficulties related to perception  

d- Politization, féminization and ideologizing  of family norms

e- Family rights and women’s rights synergism or antagonism

f- Excessive calculation poison family solidarity

g- Devotion is not a weakness or an inferiority or a subjection

h- Divorce : Review of philosophy and system of reference   

B- Marked improvements in recent years

III- From the reform of laws to realization of their essence: Promotion of the Family

A - Drawing inspiration from the charter

B - Towards a family policy awakened to values and family life

1- Dealing with the crisis in values

2- Values and Modernity: A possible conciliation?

3- Taking advantage of the system of reference with the elements needed for a comprehensive family policy 

a- The comprehensive family perspective approach

b- Integrating family related prescriptions in public order

c- The regulation of behaviours with a view to securing social peace

d- Living together not based on equality only but on equity as well

Dr Rajaa Naji el Mekkaoui is an expert in family law at the Université Mohamed-V in Rabat and one of the architects of the mourchidat programme

1 The Ministry of Awqaf, has at every opportunity, on his part , explained the Islamic foundation of the main innovations of the Moudawana, namely the concept of (wilaya).

2 At the opening of the second legislative year of the 7th Legislature.

3 E.g. The Act on creating a Family Solidarity Fund and the Act enhancing the principle of Judicial Aid…

4 See the 2005 reform which has reproduced the same Moroccan precepts on the usefulness of reconciliation process and reducing divorce proceedings.

5 Algeria, barely a year later, amended the Family Law by adopting, but shyly, the same principles introduced by the new Moroccan Moudawana.

6 “Each of you is a shepherd, and each is responsible for his flock. The ruler of people is a shepherd, responsible for his flock. A man in his house is a shepherd, responsible for his flock. A woman at her husband’s house is a shepherd, responsible for her flock...” Hadith narrated by Boukhari in his Sahih (Chapter on Marriage) and Muslim in his Sahih (Chapter on Authority).

7 For more details see the lecture that I delivered before His Majesty King Mohammed VI, as part of the month-of-Ramadan religious talks, on 10 Ramadan 1424 AH / 05 November 2003, entitled “The universality of the family structure in a multicultural world”. See the publications of the Ministry of Awqaf and Islamic Affairs.

8 Al Baqarah Surah, verse 233.

9 Except that the Quran, when it commands the faithful to disobey parents who do not respect the divine law, it urges them, however, to maintain very good relations with their parents. For this purpose the preceding verse immediately gave the cue by saying: “Obey them not; but [even then] bear them company in this world’s life with kindness, and follow the path of those who turn towards Me”, (Luqman Surah, verse 14).

10 Article 51 Para 3: Equality at the level of family responsibility. The family is placed under the joint responsibility of both spouses.

11 For example, Book of Marriage in Sahih Al Bukhari, section on the prohibition of marry off one’s virgin or previously-married daughter without her consent (saying No. 4741).

12 This is another case where custom prevailed over the religious text.

13 To this effect, paragraph 2 of Article 5, set out that the Adouls (Muslim notaries) can decide on the exchange of consent only if the husbandor his representative and the waliof the prospective wife are necessarily present in the same hearing, thus, it followed the example of customs, and did without the physical presence of the wife. It is only with the reform of 10/09/1993 that the law has relatively reconciled the duty to obtain the wife’s consent and the said customs, which are inconsistent with the philosophy of Islamic law, by ordering Adouls to obtain the bride’s consent: Art. 5: “Marriage is concluded only with the consent and acceptance of the bride, as well as her signature to the summary of the marriage certificate drafted by the Adouls...”.

The wording of this provision implied that Adouls, after deciding on the terms agreed between the two main parties (the husband and the wali) and noted their agreement on the various stipulations in the summary of the contract recorded in a special register of Adouls, the Adouls go to another room –as set out by customs - to inform the wife of the various stipulations in the said summary and then ask her, religiously, on her consent and call her to affix her signature thereon.

14 The Maliki is a Sunni school of jurisprudence (besides 3 other schools of jurisprudence: Chafi'i, Hanbali and Hanafi). The Maliki school of jurisprudence was adopted very early by Morocco.

15 Al Baqarah Surah, verse 232.

16الأساس الفقهي لإصلاح مدونة الأسرة: جعل الولاية حقا للمرأة الرشيدة تمارسها حسب اختيارها، كماأنه للمرأة بمحض إرادتها أن تفوضذلك لأبيها أو لأحد أقاربها: ترجيحا لرواية ابن القاسم عن مالك: من "أن اشتراط الولاية سنة لا فرض". وأخذا بالمذهب الحنفي في ذلك أيضا، حيث أعطى الحق للمرأة العاقلة البالغة في مباشرة العقد لنفسها بكرا كانت أو ثيبا. قال ابن رشد: "وقال أبو حنيفة وزفر والشعبي والزهري: إذا عقدت المرأة نكاحها بغير ولي وكان كفؤا جاز"(وزارة الأوقاف، تقرير 2004).

 

17«الضرورات تقدر بقدرها»

18 These illusions disproportionately went beyond. We have been told that many persons (from the western world) converted to Islam only to have the right to polygamy.

19 This why they are referred to as “ Property acquired after marriage”

20 These include revenues from professional activities (wages, fees, copyrights, etc), in addition to personal property (rent of an apartment owned by one of the spouses), gains (donations, etc). This implies that spouse can contribute to the accumulation of assets, though she has no regular income. Other efforts also included under this category (house keeping, management of household, etc).

21 Hence: El Kadd and Si’ayah

22 For further details see my book “Les Grands Dossiers de la Famille"

23 سنن ابن ماجة، كتاب الأحكام، باب من بنى في حقه ما يضر بجاره، حديث رقم: 2341

24 (Al Athar الآثار)  compilations of the Sunnah, sayings, deeds and attitudes of the Prophet’s companions

25 The woman behind this story is Habibah bint Rizq, a weaver whose husband (Harith ibn Amr) used during his lifetime to sell her products. Over the years, they have built an enormous wealth. The couple was childless, and when her husband died, his heirs came to take three quarters of the inheritance. The woman (who deserves only one fourth in accordance with Islamic law) felt prejudice and referred her case to Omar Ibn Lkhattab. He firmly stated that in addition to ¼ of the wealth, half of her husband’s fortune shall go to her in return for her contribution to the wealth accumulation. For further details see: Les Grands Dossiers de la Famille.

26 One of the most ancient cities of Rif

27 In Arab and Islamic terminology Bid'ah بدعة  means blameful innovation, not approved by Shariawhile Bid'ahhasanaبدعة حسنة  means laudable innovation, approved and encouraged by Sharia

28 Children are the first victims of the thoughtlessness of their father got used to pronouncing Talaq  for a minor detail or for a mere superficial misunderstanding, because in his culture he has been taught that he is a man, that his manliness would not be affected only when he is capable of destroying the family and that by a simple word composed of three syllables, he can break off family life and expose his own flesh to all possible and unimaginable risks….These same fathers find themselves in situations of regret and inability to re-establish family ties  

29 The terms interest, protection, to protect… are considerably recurrent in children specific articles.

30 Article 171: Custody shall be first awarded to the mother, then to the father, then to the maternal grandmother of the child. Should this be failing, the court shall, in the light of the presumptions available to it and to the effect of protecting the child, award custody to the most qualified of the child’s close relatives to be given custody, while guaranteeing decent housing for the child under custody in the same way as support.

31 But, it has been revealed under the old code  that the deficiencies and failures do not solely depend on the legal provisions, but rather on qualified courts at the  equipment, human and procedural level…

32 See for instance our aforesaid work coming in three volumes and in many other articles appearing on the internet,  works of several symposia organised on the occasion of the enactment of the Moudawana and the evaluation of its implementation…

Making Reform Real: Ziauddin Sardar on why uttering "I divorce thee" is not enough.

For an English translation of the Moudawana click here