The Moroccan Family Code (MOUDAWANA)

of February 5, 2004

An unofficial English translation of the original Arabic text

provided by Human Rights Education Associates

A literal translation was privileged rather than attempts to clarify, explain or interpret the intention of the legislator. We hope this translation will be useful to researchers, NGOs and public authorities interested in family law and the rights of women in Morocco.

Human Rights Education Associates (HREA) is an international non-governmental and non-profit organization. For more information please consult our website at www.hrea.org.

Official Gazette General Provisions
Sherifyan Dahir (Royal Edict) n° 1.04.22 issued on 12 Dou Al Hijja 1424
(February 3, 2004) To Implement Law n° 70.03 as the Family Code

Praise Be to God,
The Sherifyan Seal – enclosed herewith:

(Mohamed Ibnou Al Hassan Ibnou Mohamed Ibnou Youssef, May God be his Protector)
From our Sherifyan Dahir (Royal Edict), May God Glorify, we notify of:
On the basis of the Constitution, notably Chapters 26 and 58, We issued our Sherifyan
Order with the following:

To be enforced and published in the Official Gazette, our Sherifyan Dahir (Royal Edict), Law n° 70.03 as the Family Code, as it has been approved by the House of Representatives and the Chamber of Counselors.

Written in Rabat on 12 Dou Al Hijja 1424 (February 3, 2004) Affixed with countersignature by: The Prime Minister,

Signed: Driss Jettou

Preamble

Since acceding to the throne of his noble ancestors, His Majesty King Mohamed VI, our Chief Commander of the Faithful, may God protect him, has made the promotion of human rights a priority which lies at the very heart of the modernist democratic social project of which His Majesty is a leader. Doing justice to women, protecting children’s rights and preserving men’s dignity are a fundamental part of this project, which adheres to Islam’s tolerant ends and objectives, notably justice, equality, solidarity, ijtihad (juridical reasoning) and receptiveness to the spirit of our modern era and the requirements of progress and development.

Whereas the late King Mohamed V, may God rest him in peace, upon Morocco’s recovery of its sovereignty worked to establish a Personal Status Code, which constituted then the first step in establishing the rule of law and the unification of provisions in this regard; given that the work of the late King Hassan II, may God enlighten his tomb, was distinguished by the constitutional consecration of equality before the law, with a priority given, may God glorify his soul, to an exceptional attention to family issues, clearly manifested in all aspects of political, institutional, economic, social and cultural life. As a result, Moroccan women occupy more prominent positions that have enabled them to participate actively in different areas of public life.

In the same vein, and following the right path of his august grandfather and father, His Majesty King Mohamed VI, may God glorify him - in order to illustrate his commitment to
the policies of local democracy and participation, respond to the legitimate expectations of the Moroccan people, and further emphasize the shared will that unites the entire nation with its leader on the path of comprehensive reform, swift progress, and the strengthening of the Kingdom’s civilizational enlightenment - has insisted, may God protect him, on making the Moroccan family - based upon shared responsibility, affection, equality, equity, amicable social relations and proper upbringing of children - a substantial major component of the democratization process, given that the family constitutes the essential nucleus of society.

King Mohamed VI, may God glorify him, has, since acceding to the throne and assuming the great responsibility of ruling over the Believers, followed the path of wisdom and insight to realize such a noble objective, and to this end appointed an advisory Royal Commission constituted of the finest experts and religious scholars, men and women from a diversity of profiles and fields, to conduct a fundamental review of the Personal Status Code. His Majesty, may God cherish him, provided the Commission with his constant enlightened guidance and advice in order to prepare a new Family Code bill, and insisted upon their fidelity to the provisions of Sharia (religious law) and Islamic principles of tolerance, and encouraged the use of ijtihad (juridical reasoning) to deduce laws and precepts, while taking into consideration the spirit of our modern era and the imperatives of development, in accordance with the Kingdom’s commitment to internationally recognised human rights.

One of the results of this supreme royal attention was the historic achievement of this pioneering Family Code, its provisions drafted in a modern legal jurisprudential style, in
conformity with Islam’s tolerant rules and exemplary purposes while providing balanced, fair and pragmatic solutions resulting from enlightened open ijtihad (juridical reasoning). This code further stipulates that human and citizenship rights are accorded to all Moroccans, women and men equally, in respect of the holy divine religious references.
The Parliament, with its two Houses, is proud of the wisdom, insight, responsibility and realism that King Mohamed VI, may God glorify him, has made predominant throughout the entire preparatory process of this social human rights document, and proudly values the distinguished historical transition that this Family Code represents, given that it is a legal text constitutive of the modern democratic society.

The nation’s representatives in the Parliament praise the democratic initiative of his Majesty the King, who ordered the presentation of the Family Code bill to the two Houses of Parliament for consideration, because of the belief of His Majesty, the Commander of the Faithful and sovereign representative of the nation, in the prominent role of the Parliament in the democratic construction of a country of institutions.
The Parliament also gratefully praises the King’s provision for specialized Family Courts and a just, fit, modern and efficient system of family justice. The Parliament further emphasizes the mobilization of all its Members behind the Commander of the Faithful to provide all the means and texts to permit the establishment of an integrated and harmonious legislative apparatus, which will serve to consolidate the family and enhance the joining of forces in society.

Given all of these considerations, the Parliament is proud of the precious content and enlightened guidance in His Majesty the King’s historical speech upon the opening of the second legislative year of the seventh term. Those orientations will be adopted by the Parliament as the best preamble for the Family Code, particularly what was included in the sovereign Royal speech, as the King, may God support him said:
“In our sovereign instructions and guidance to the Commission, and while giving our views on the Family Code bill, we adopted the following fundamental reforms:
One: Adopt a modern form of wording and remove degrading and debasing terms for women.

Place the family under the joint responsibility of both spouses, given that ‘women are men’s sisters before the law’ in keeping with the words of my ancestor the Chosen Prophet Sidna Mohammed, Peace Be Upon Him, as reported, ‘Only an honourable person dignifies women, and only a villainous one degrades them.’

Two: Entitle the woman who has come of age to tutelage as a right, and she may exercise it according to her choice and interests, on the basis of an interpretation of a holy verse stipulating that a woman cannot be compelled to marry against her will: “…place not difficulties in the way of their marrying their husbands, if it is agreed between them in kindness.’ A woman may of her own free will delegate tutelage to her father or a male relative.

Three: Equality between women and men with respect to the minimum age for marriage,
which is now fixed at eighteen years for both, in accordance with certain provisions of the Malekite School, and authorize the judge to reduce this age only in justified cases, and further, equality between girls and boys under custody who may choose their custodian at the age of fifteen.

Four: Concerning polygamy, we took into consideration the commitment to the tolerant
principles of Islam in establishing justice, which the Almighty requires for polygamy to take place, as it is plainly stated in the Holy Koran: He said '...and if you fear that you cannot do justice (to so many) then one (only).' And since the Almighty ruled out the possibility for men to do justice in this particular case, He said: 'You will not be able to deal equally between (your) wives, however much you wish (to do so),' and he thus made polygamy quasi impossible under Sharia (religious law).

We further adhered to the distinguished wisdom of Islam in allowing men to legitimately take a second wife, but only under compelling circumstances and stringent restrictions, with the judge’s authorisation, instead of illegitimate polygamy occurring if we prohibit it entirely.

From thence, polygamy shall be allowed only in the following circumstances and according to the following legal conditions:
- The judge shall not authorize polygamy unless he has verified the husband’s ability to
guarantee equality with the first wife and her children in all areas of life, and there is an
objective and exceptional motive that justifies polygamy.
- The woman has the right to stipulate a condition in the marriage contract by which her
husband will refrain from taking another wife, as Omar Ibn Al-Khattab, may God be pleased with him, is quoted as saying: 'The intersection of rights is in the conditions.' In the absence of such a condition, the first wife is summoned to obtain her consent, and the second wife must also be notified and consent to the fact that the husband is already married to another woman. Moreover, the first wife has the right to petition for divorce for harm suffered.

Five: As a token of our royal concern for our dear subjects residing abroad, marriage
procedures are to be simplified for them: the marriage contract is to be drawn up in the
presence of two Muslim witnesses and in accordance with the procedures in effect in the
country of residence, and then registered with the proper Moroccan consular or judicial
authorities, according to the Hadith: 'Seek ease, not hardship.'

Six: Make divorce, defined as the dissolution of marriage, a prerogative that may be exercised as much by the husband as by the wife, in accordance with legal conditions established for each party and under judicial supervision to control and restrict the abusive arbitrary practices of the husband in exercising repudiation, and this according to the rules established on the basis of the Hadith by Prophet Mohammed, Peace Be Upon Him, ‘The most hateful to God among all lawful things is divorce.’ The new legislation also reinforces the mechanisms for reconciliation and mediation both through the family and the judge. If the husband has the right of repudiation, the wife may also avail herself of this right through tamleek (assignation). In all cases, before repudiation may be authorized it must be ascertained that the repudiated woman has received all of her vested rights. A new procedure for repudiation has been established that requires judicial permission, and the repudiation can not be registered until all vested rights owed to the wife and children have been paid in full by the husband. Irregular pronouncements of repudiation by the husband shall not be considered valid.

Seven: Expand the woman’s right to file for divorce when the husband does not fulfil any of the conditions stipulated in the marriage contract, or for harm caused to the wife such as lack of financial support, abandonment, violence, and other harm, in view of endorsing the general legal principle: ‘neither harm nor be harmed,’ to promote equality and equity between the two spouses. Another new provision introduces of the right of divorce by mutual consent under judicial supervision.

Eight: Protect children’s rights by inserting provisions of international conventions ratified by Morocco into the Moudawana. Children’s interests with respect to custody are also
guaranteed by awarding custody to the mother, then to the father, then to the maternal grandmother. Should this prove impossible, the judge will entrust custody to the most
qualified relative. Furthermore, the child under custody is guaranteed suitable accommodation, separate from the other financial maintenance obligations, and cases
concerning maintenance obligations must be settled swiftly within a one-month time limit.

Nine: Protect the child’s right to acknowledgement of paternity in the event the marriage has not been officially registered for reasons of force majeure, where the court examines the evidence presented to prove filiation, and establish a five year time limit for settling outstanding cases in this regard to put an end to the suffering endured by children in this
situation.

Ten: Allow the granddaughter and grandson on the daughter’s side the right to inherit from their grandfather, just as the grandchildren on the son’s side, in keeping with the principles of ijtihad (juridical reasoning) and justice in the compulsory legacy.

Eleven: Concerning the management of property acquired by the two spouses during marriage: while confirming the principle of separate marital property, the bill makes it
possible for the couple to agree, in a document separate from the marriage contract, on a framework for managing assets acquired during marriage. In case of disagreement, the judge shall resort to general rules of evidence to assess each spouse’s contribution to the development of the family capital.

Ladies and gentlemen, honourable Members of Parliament,The reforms, of which we cited the most important, should not be considered as a victory of one group over another, but rather constitute achievements for all Moroccans, and we took care to ensure that they were consistent with the following principles and references:
- I cannot, as Commander of the Faithful, permit what God has forbidden and forbid what God has permitted.
- Adopt the tolerant principles of Islam in advocating human dignity, and enhancing justice, equality and good amicable social relations, and with the cohesiveness of the Malekite School as well as ijtihad (juridical reasoning), which makes Islam valid for any time and place, to implement a modern Moudawana for the family, consistent with the spirit of our glorious religion.
- Not consider the Moudawana as a law for the woman only, but a Moudawana for the entire family - father, mother and children - and further ensure that this Moudawana eliminates discrimination against women, protects the rights of children and preserves men’s dignity.

Would any one of you agree to throw his family, wife and children out of the home into the street, or for his daughter or sister to be treated unjustly? As the King of all Moroccans, we do not legislate for specific groups or categories of people,
rather we epitomize the general will of the nation, which we consider as our extended family.

To protect the rights of our faithful subjects of Jewish faith, we have emphasized in the new Family Code that they shall be governed by the provisions of the Hebraic Moroccan Family Law.

Whereas the 1957 Moudawana was enacted before the creation of the Parliament, and amended in 1993 during a transitional constitutional period by virtue of Sherifyan Dahirs
(Royal Edicts), we have esteemed it perspicacious to present the Family Code bill to the Parliament for the first time in view of its implications for civil law, noting that its religious legal provisions fall within the competence of the Commander of the Faithful.
We expect you to rise to this historical responsibility, both through your respect of the sacredness of this bill’s texts, inspired by the tolerant principles of Sharia (religious law), and through your adoption of other texts. These provisions should not be considered as exhaustive or approached in a narrow-minded way, but rather should be approached
realistically and insightfully, because this constitutes an ijtihad (juridical reasoning) effort suitable for contemporary Morocco and our openness to development which we are
determined to integrate wisely and progressively.

As the Commander of the Faithful, we will follow your work in the light of the words of God, ‘…and consult with them upon the conduct of affairs,’ and ‘And when thou art resolved, put thy trust in Allah.’ In order to ensure all conditions necessary for the optimal enforcement of the Family Code, we addressed a Royal letter to our Minister of Justice. In this letter, we explained that whatever reforms the Moudawana may contain, its implementation hinges on the creation of a fair, modern and effective family justice system - particularly since it became clear from the application of the present Moudawana that the inadequacies and flaws it contains are not simply due to its clauses, but rather are the consequences of the absence of a qualified family justice system in terms of logistics, human resources and procedures - to fulfil all conditions of justice and equity, accelerate the resolution of cases and promptly enforce judgements.

We further ordered him to accelerate the establishment of suitable facilities for the administration of family justice within the different courts of the Kingdom and the training of qualified personnel at different levels, given the powers that this bill gives to the judiciary, in addition to the necessity to accelerate the creation of a Family Solidarity Fund.

Furthermore, we ordered him to submit to us proposals for the constitution of a committee of experts to draft a practical guide containing different provisions, texts and procedures concerning the family justice system for it to serve as its unified source of reference and as the procedure for this Family Code, and efforts must also be made to reduce the current Civil Procedure Code deadlines for the execution of family affairs.”

Law n° 70.03
Enacted as The Family Code
PRELIMINARY TITLE
General Provisions

Article 1
This law is entitled the Family Code and will be referred to thereafter as the Moudawana.

Article 2
The articles of this Moudawana apply to:
1- All Moroccans, including those with another nationality,
2- Refugees, including stateless persons, by virtue of the Geneva Treaty signed on July 28, 1951 relating to the status of refugees,
3- Relationships in which one of the parties is Moroccan,
4- Relationships between two Moroccans, one of whom is Muslim.
Moroccans of Jewish faith shall be governed by the provisions of the Hebraic Moroccan Family Law.

Article 3
The Public Prosecutor’s Office is an essential party to all legal actions related to the implementation of the provisions of this Moudawana.

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