EventsMoroccan Policy DialogueMoroccan Family Code Reform: Achievements, Challenges, and Future Directions for Gender Equality”

Moroccan Family Code Reform: Achievements, Challenges, and Future Directions for Gender Equality”

Moroccan Policy Dialogue Series 2023

November, 4^th, 2023, Rabat, Morocco

Background

On 3 February 2004, after due consideration, the Moroccan parliament adopted the “Family Code” bill (Moudawant Al Ousra), replacing the Personal Status Code (PSC) which was drawn up in 1958 after the country’s independence.  The context marked by an unprecedented debate on the status of women in a country which is supposed to be in transition towards democracy, but where resistance to change is everywhere. Determined by the elite ‘ulama, the ‘Family Code’ was created as a continuation of traditional ‘Maliki fiqh’. The combined result of a struggle by women for almost three decades and a certain degree of real political will, the ‘Family Code’ is more than a simple legal reform, which governs matters such as marriage, divorce, child custody, nationality and inheritance. It has sparked Moroccan society to engage in a public dialogue regarding gender equality in the family.

The ‘Family Code’ governs various critical domains such as marriage, divorce, inheritance, and child custody. Under the 1958 code, men had the liberty to practice polygamy without seeking consent from their existing wives. The right of women to seek divorce was heavily restricted, and women were unable to enter into marriage without the approval of a legal guardian, among other restrictive regulations. In the period preceding the adoption of the 2004 ‘the Family Code’, a royal commission comprising religious scholars and legal experts, appointed by the King, diligently worked over a span of 30 months to propose amendments. Upon the eventual adoption of the ‘Family Code’, numerous noteworthy alterations were implemented, many of which were met with acclaim from activists. Several pivotal provisions of the code are highlighted below.

First, the minimum age for marriage was raised to 18 years old from 15 for women. While this was a welcome step, it is not an absolute minimum as Article 20 of the code still allows a family affairs judge to approve the marriage of a minor in cases where there is a “well-substantiated decision explaining the reasons justifying the marriage.”

While the ‘Family Code’ did not out rightly prohibit polygamy, it did impose constraints on this practice. The code mandates that a husband must demonstrate the necessity of entering into a second marriage and necessitates judicial approval for such unions, outlining the procedural details in Articles 40 to 46. Specifically, Article 44 stipulates that a court cannot authorize polygamy unless there is “exceptional and objective justification” provided or if the man lacks the “adequate means to support both families and ensure the fulfillment of all maintenance rights, housing, and equal treatment in all aspects of life.”

Regarding divorce matters, the 2004 code extended the rights of women to initiate divorce proceedings, including granting both men and women the ability to seek divorce based on irreconcilable differences. However, certain disparities persist: men retain the unilateral right to divorce through repudiation, while women are required to either provide compensation to their husbands for divorce or demonstrate one of six specified justifications to initiate divorce proceedings.

With regard to child custody following divorce, the code upholds the legal guardianship of the father unless specific circumstances such as death, absence, or incapacity are present, resulting in men retaining decision-making authority in various significant contexts. The allocation of custody is initially granted to the mother, followed by the father, and then the maternal grandmother. Furthermore, when a child reaches the age of 15, Article 166 of the ‘Family Code’ grant them the right to choose which parent will assume the role of custodian. However, it’s important to note that when a woman remarries, there exists a potential risk of her losing custody of her child. Article 175 of the code stipulates that a woman will not forfeit custody upon remarriage provided that one of four conditions is met: (1) the child is seven years old or younger, or separation from the mother would be detrimental to the child; (2) the child has a medical condition or disability that makes it impossible for anyone other than the mother to provide care; (3) the person she is marrying is the legal guardian of the child or has a close kinship relationship with the child; or (4) the mother holds the legal guardianship of the child.

The introduction of the ‘Family Code’ in 2004 removed some inheritance provisions that discriminated women; but women are still disadvantaged. Women have a right to inheritance, but in many cases receive less than men. Daughters receive half the share that sons receive. The child of a deceased mother inherits from the maternal grandparents in the same way as a child of a deceased father.

For nationality, women enjoy equal rights with men to confer their citizenship on their children under the Nationality Law.  A bill purporting to amend the Nationality Law to enable Moroccan women to pass on their nationality to their foreign spouses was introduced in November 2017 to the Chamber of Representatives, where it is under consideration by the Justice Commission of the Chamber.

Undoubtedly, Morocco displays today one of the most liberal and progressive legal frameworks in the MENA regions in terms of gender equality. The 2011 Constitution provides for equality of Moroccan citizens and obligates public bodies to promote liberty and equality for male and female citizens and to foster participation in political, economic, social and cultural life. Gender equality is enshrined in a number of key laws, including the (revised) Labor Code (2003) and the Law on Nationality (2008). The introduction of a quota in local elections raised the level of women’s representation in 2009. Morocco formally withdrew its reservations to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2011, which covered issues related to equality of marital rights.  Despite progress in reducing gender gaps, women in Morocco continue to face significant obstacles to social, economic, and political participation. Women’s access to fundamental resources—from education to key economic assets—remains extremely limited. Gender differences in endowments (education, access to assets and formal institutions, employment, wages…) continue to overlap with limited agency (differences in societal voice and household decision making), resulting in different and unequal economic opportunities.

Though the ‘Family Code’ did introduce a number of progressive provisions, a number of issues remain in what it entrenches and how it is being interpreted and implemented. Discrepancy in how the code has been applied by judges, depending on geographic location and socioeconomic background, still remains; some judges continue to rely on religiously conservative interpretations when applying the code. In May 2023, Morocco’s Minister of Justice ‘Abdellatif Ouahbi’ confirmed his commitment toward pursuing new reforms, which he described as “the final fight to end the exclusion and mistreatment of women, which has accumulated in our country for years.” Additionally, Morocco’s House of Representatives began to discuss the possibility of amending the country’s nearly-twenty year old family code, to “create a balance between Islamic teachings and the reality of modern Moroccan society.”

According to an official communiqué from the Royal Court in September 2023, the monarch Mohammed VI sent a letter to the head of government, Aziz Akhannouch, concerning the revision of the Family Code. This Royal Letter concretizes the royal decision HM the King announced in the Throne Speech for 2022 and reflects the high priority the Sovereign continues to give to the promotion of women’s and family issues. The monarch’s letter to the head of government also included instructions regarding the practical supervision of the reform to be a “collective and joining effort” involving several institutions, including the Ministry of Justice, the Supreme Judicial Council, and the Public Prosecutor Office. In particular, the royal letter urged these institutions to “closely involve relevant bodies directly concerned with this subject, including the Supreme Scientific Council, the National Council for Human Rights, and the governmental authority responsible for solidarity, social integration, and family affairs.”

 

Objective and Themes

Family code is important in the context of development because it covers issues impacting legal equality (rights to marriage and divorce, head-of-household status, management of marital property and guardianship of children), access to economic assets (inheritance, dowries, alimony and child support), and the protection of children (child custody). Increasing rights of women within the family, and improving means to exercise them, can also have positive impacts on women’s agency. Reform of the Family Code in 2004 closed a number of gender gaps but gaps persist and implementation of reforms remains mixed. Legislation is often difficult to implement when provisions conflict with social norms, as continues to be the case in Morocco.

The main objective of this policy dialogue is to provide a platform for creating synergies between policy entrepreneurs and stakeholders and stimulate dialogue on issues pertaining to gender equality in Morocco. The main themes to be discusses are the following:

• Implementation Discrepancies:
• How can Morocco address the disparities in the application of the Family Code, particularly with regard to geographic location and socioeconomic background?
• What strategies can be employed to ensure consistent and equitable enforcement of the code across the country?
• Reforms and Implementation: Are Gender Gaps Closing?

• Religious vs. Progressive Interpretations:
• How can the tension between religiously conservative interpretations and the progressive provisions of the Moudawana be effectively addressed?
• What role can religious scholars and institutions play in promoting a more gender-equitable interpretation of the code?

• Amendment of the Family Code:
• What are the key considerations and objectives in amending the Family Code to balance Islamic teachings with modern societal realities?
• How can the code be reformed to better align with contemporary notions of gender equality and women’s rights?

 

Target audience

The dialogue targets:

• Policy Entrepreneurs: whom have a vested interest and resources in the policy issue (policy makers, technical experts in the policy area, researchers, professionals, civil servants)
• Other stakeholders: NGOs, research institutions, professional associations, local funding partners and other civil society organizations that also have key roles to play through aligning their aims and activities with the overall policy and planning cycle. These groups of actors also have an important advocacy role, i.e., bringing attention to priority issues and offering options to solve them.

While the participants meet in person, the event is conducted under Chatham House Rule, which means “When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.