Economic DevelopmentMoroccan Policy DialogueResearchMoroccan Family Code Reform: Achievements, Challenges, and Future Directions for Gender Equality

Avatar MIPA Institute22/07/2024235829 min

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

Policy Brief

 

By: Mohammed Masbah, Hajar Idrissi and Rachid Aourraz

 

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 is marked by an unprecedented debate on the status of women in a country that is supposed to be in the transition toward 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.

Morocco displays today one of the most liberal and progressive legal frameworks in the MENA regions in terms of gender equality. Increasing the rights of women within the family and improving the 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 tricky to implement when provisions conflict with social norms, as continues to be the case in Morocco. The Constitution, revised in 2011, provides for the 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. Morocco formally withdrew its reservations to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2011, and adopted its Optional Protocol in 2012. The result of these changes is that de jure women enjoy more freedom to travel, access employment, and negotiate marriage and divorce[1].

In May 2023, Morocco’s Minister of Justice ‘Abdellatif Ouahbi’ confirmed his commitment to 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.”.Morocco’s House of Representatives also discussed the possibility of amending the country’s nearly-twenty year old 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.”

The Family Code 2004

The Family Code of 2004 was part of an effort to promote human rights as a component of the democratic and social project initiated by King Mohammed VI since the beginning of his reign in 1999. The new Family Code, introduced after a period of public consultations, did allow for closing some of the gender gaps related to family life. In the period preceding the adoption of the 2004 ‘the Family Code’, a royal commission comprising religious scholars, legal experts, and civil society organizations 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.

Two of the most important changes related to equality were that husbands and wives were provided ‘joint responsibility’ in family matters, making both de jure heads of household, and the requirement of women’s obedience to their husbands was dropped.

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.” However, the number of marriages involving parties under the age of eighteen has been increasing—from 38,331 in 2007 to 44,134 in 2010. Underage marriages accounted for 11 percent of marriages in 2010 and 12 percent in 2011[2].

Moreover, women have gained the right to marry without the requirement of obtaining consent from a male guardian, which was previously necessary for finalizing the marriage contract. However, the percentage of women signing their own marriage contracts was only around 20 percent in 2011[3].

Under the 1957 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.While the ‘Family Code’ did not outrightly 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.”

Reforms to the Family Code in 2004 significantly increased women’s access to divorce, making both partners benefit from the money earned during the marriage. The Family code permitted two new categories of divorce for women including, mutual consent and irreconcilable differences (Shiqaq). The 2004 code extended the rights of women to initiate divorce proceedings, including granting both men and women the ability to seek divorce, without having to show some cause by their husbands. Showing cause involves demonstrating harm by their husbands, such as lack of financial support, failure to abide by the marriage contract, abandonment, physical abuse, or absence. However, specific disparities persist: men retain the unilateral right to divorce through repudiation, while a woman can obtain a divorce (khul’ae) only by renouncing her rights to financial assets related to marriage, such as dowries and alimony.

The grounds for divorce and the procedures for entering marriage were adjusted to be more equitable, although specific disparities still exist. In terms of child custody, women are given preference for physical custody of young children in the event of a divorce. However, men are granted precedence in legal custody, which entails making crucial decisions regarding the child’s well-being, including matters related to education and healthcare, traveling outside the country and obligates a father to continue financial maintenance through child support payments to the mother until the children are no longer considered minors. Considering the limited levels of women’s participation in the labor force and their restricted control over economic assets, child support payments hold particular significance. However, numerous women encounter significant challenges in enforcing judicial decisions that grant child support.

The code upholds the legal guardianship of the father unless specific circumstances such as death, absence, or incapacity are present. 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’ grants 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.

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. In September 2023, Minister of Justice affirmed, in response to a written question from Idris Al-Santisi, the head of the parliamentary team of the Popular Movement in the Chamber of Representatives, regarding “granting Moroccan nationality to a foreign husband married to a Moroccan,” that his ministry had submitted a draft law, Bill No. 019.13, amending Article 10 of the nationality law. This amendment grants the foreign husband the right to acquire nationality through marriage to a Moroccan woman. He noted that the proposal is still undergoing approval procedures within the government.

Despite some progress in reducing gender gaps, women in Morocco face significant obstacles to social, economic, and political participation. Women’s access to fundamental resources—from education to vital 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.

Challenges and Opportunities

Reforming and revising the Family Code 2004 in 2023-2024arguably enhances women’s agency. New rights and services to access themshould be introduced within the concepts of religious and cultural norms. The following are some controversial issues to address in the new Moudawana:

  • The tension between religiously conservative interpretations and the progressive provisions of the family code in Morocco, enacted in 2004, reflects a broader societal debate over the balance between traditional values and modern principles, as well as the interaction between religious and legal frameworks. However, challenges persist due to conservative interpretations influenced by traditional norms and religious beliefs, particularly within the context of Sharia law. Recognizing and respecting cultural and religious sensitivities is crucial. Efforts should be made to demonstrate that legal reforms do not necessarily contradict religious principles but seek to adapt to evolving societal needs. Engaging community leaders, including religious figures, in conversations about the importance of gender equality can help bridge the gap between traditional values and modern legal frameworks.
  • As the Moroccan Family Code specifically pertains to family matters, which inherently involve issues of filiation, it does not provide legal directives concerning the personal status of children lacking paternal lineage. This category includes abandoned, orphaned, or foundling children. While the Code explicitly states that adoption holds no legal consequence in Morocco, it does not address the legal framework for alternative care arrangements for children without parents.
  • Underage marriages accounted for 11 percent of marriages in 2010 and 12 percent in 2011[4]. Judicial consent is not an adequate screen for the legitimacy of the marriage of minors. The judicial authority may grant the dispensation of age to a minor who has not attained the age of matrimonial capacity, permissible solely under circumstances of “necessity or interest” in accordance with Article 20. It is, however, lamentable that no illustrative instances of “necessity” or “interest” have been delineated, thus, limiting as much as possible the extended power of the judge.This extensive discretion could potentially lead to abuses, particularly in the context of forced marriages. Indeed, there are strict conditions that the family judge overseeing the marriage must adhere to, such as hearing from the minor’s father and mother or, in their absence, their legal representative. Additionally, the judge may resort to medical expertise or a social investigation. The marriage request must be signed by both the minor and their legal representative to ensure that the marriage is not coerced. However, sometimes, the lack of human resources in terms of social assistance or the spread of corruption to get the medical certificate might be a challenge.
  • Another anomaly highlighted by reform advocates is the amount of money demanded by the courts for child support. The national average is 400 dirhams per month per child, and there is also an allowance of around 100 dirhams, which is paid in return for custody. More than 70% of workers[5] are in the informal sector, and many others are involved in family businesses. In these conditions, it is considered easy to present the judge with incomes that don’t correspond to reality to reduce the amounts of alimony. While the judge has full authority in determining the amounts, there is a need to limit this discretionary power to prevent abuses.
  • Unregistered customary marriage, known Zawaj al-Fatiha (Fatiha marriage),represent, for the legal community as well as for associations, a phenomenon to be eliminated as it opens the door to abusive practices, depriving women and children of their rights. Fatiha marriage is a religiously concluded marriage, practiced particularly in rural areas, where the conditions for marriage have not been assessed by the authorities and are not registered in public records. Such marriages have no legal validity in Morocco[6]. The actual marriage takes place by reading the Zawajal-Fatiha in the presence of two witnesses, paying the bride price and making the marriage publicly known, thus fulfilling the basic conditions for a marriage in Islam. There is a need for more information campaigns in those areas to get the marriages registered, also with a view to enabling women to assert their statutory rights in the event of a divorce.

 

 

Footnotes

[1]Conseil National des Droits de l’homme. Gender, Equality and Parity in Morocco: Preserving and implementing the aims and objectives of the Constitution. https://www.cndh.org.ma/sites/default/files/cndh_-_r.e_-_web_parite_egalite_uk_-.pdf

[2]Ministry of Justice and Liberties, Family Court Statistics (2011).

[3] Femme Marocaine en Chiffres, Tendances d’évolution des caractéristiques démographiques et socio-professionelles, Journée Nationale de la Femme, Haut-Commissariat au Plan, Royaume du Maroc (2012); and Ministry of Justice and Liberties, Family Court Statistics (2011).

[4] World Bank. 2015. Morocco, Mind the Gap. Empowering Women for a more Open, Inclusive and Prosperous Society. https://documents1.worldbank.org/curated/en/798491468000266024/pdf/103907-WP-P144621-PUBLIC-Non-BOARD-VERSION-Morocco-Gender-ENG-3-8-16-web.pdf

[5]World Bank. March 30, 2021. Employment Prospects for Moroccans. https://www.worldbank.org/en/news/feature/2021/03/30/employment-prospects-for-moroccans-diagnosing-the-barriers-to-good-jobs

[6]Landinfo. Morocco: Marriage and divorce – legal and cultural aspects. 2017.https://landinfo.no/wp-content/uploads/2018/04/Morocco-Marriage-and-divorce-legal-and-cultural-aspects-21042017-final.pdf

 

 

 

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MIPA is a non-profit independent research institution based in Rabat, Morocco. Founded by a group of transdisciplinary researchers, MIPA’s mission is to produce systematic and in-depth analysis of relevant policy issues that lead to new and innovative ideas for solving some of the most pressing issues relating to democracy.

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