November 7, 2003 Special Dispatch No. 604

King of Morocco Calls for Fundamental Reform in Family Law

November 7, 2003
Morocco | Special Dispatch No. 604

In an October 10, 2003 speech to members of the Moroccan parliament, King Muhammad VI introduced eleven fundamental reforms in a new Family Law proposed in Morocco. The following are excerpts from his speech: [1]

Men and Women are Equal Before the Law

1- "[We should] adopt a modern form of wording instead of that which undermines the dignity of women as human beings. Make husband and wife jointly responsible for the family, in keeping with the words of my ancestor the Prophet Sidna Muhammad (pbuH) who said that men and women were equal before the law, and also with the saying: 'Only an honorable man will honor them (women); and only an ignoble man will humble them.'

2- "Entitle the woman who has come of age to guardianship as a right, if she so chooses or if it serves her interest, in accordance with one of the interpretations of the Koranic verse which stipulates that a woman shall not be forced to marry against her free will: '…place not difficulties in the way of their (re-)marrying their husbands if it is agreed between them in kindness.' A woman may, of her own free will, entrust guardianship to her father or to a relative.

3- "Ensure equality between men and women by setting the minimum age for marriage at 18 years for both of them, in accordance with certain provisions of the Malikite rite. [2] The judge may, however, lower the age for marriage in certain justifiable cases. Also ensure equality between boys and girls placed in custody, by allowing them to choose their custodian at the age of 15."

Polygamy is Almost Impossible

4- "Regarding polygamy, I have seen to it that the true, tolerant aims of Islam are duly taken into account, mainly with respect to justice. In this regard, Almighty Allah allowed polygamy, but subject to compliance with strict conditions; He said: '…and if you fear that you cannot do justice (to so many) then one (only).'

"Then the Almighty ruled out the possibility for man 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).' He thus made polygamy almost impossible, from the Islamic legal point of view.

"Similarly, I have sought guidance from the pristine wisdom of Islam which makes it legally possible for a man to take a second wife, but only in circumstances beyond control. In addition, strict conditions must be observed and a judge's permission secured. Failure to allow for such exceptions by outlawing polygamy, may result in men being tempted to engage in unlawful polygamy.

"Hence, polygamy shall be allowed solely in the following cases and under the legal conditions below:

- "The judge shall not allow polygamy unless he ascertains that the husband will treat his second wife and her children on an equal footing with the first, that he will provide the same living conditions for all, and that there is a clear and objective justification for polygamy...

- "The woman has the right to impose a condition in the marriage contract whereby her husband will refrain from taking a second wife. In this connection, Omar Ibn Al-Khattab, may God be pleased with him, is quoted as saying: 'Contracts are tantamount to laws, for both parties.' If no such condition has been stipulated, the judge shall summon the first wife to secure her consent. Similarly, the second wife must be informed that her husband-to-be is already married. Her consent must also be secured. The first wife shall have the right to ask for divorce because of harm suffered."

Simplifying Marriage for Moroccans Living Abroad

5- "As a token of my special concern for my dear subjects residing abroad, and in order to reduce the hassle they face to get marriage contracts processed, I have decided that the procedure shall be simplified. The marriage contract shall simply be drawn up in the presence of two Muslim witnesses, in accordance with the procedures in force in the country of residence, and shall then be registered with the relevant Moroccan consular or judicial authorities. In this regard, the Prophet (pbuH) is quoted as saying: 'Seek ease, not hardship.'"

Equal Divorce Rights for Men and Women

6- "Make divorce, defined as the dissolution of marriage, a prerogative that can be exercised as much by the husband as by the wife, in accordance with legal conditions set for each party, and under judicial supervision. Thus, the husband's right to resort to repudiation shall be limited by specific restrictions and conditions designed to avoid misuse of this right. In this connection, the Prophet (pbuH) is quoted as saying: 'The most hateful to God, of all lawful things, is divorce.'

"For this purpose, mechanisms for reconciliation and mediation, through the family and the judge, shall be strengthened.

"Divorce is the prerogative of the husband; the wife may also avail herself of this prerogative by using the right of option (Tamleek).

"Whatever the case, and before the divorce is authorized, it shall be ascertained that the divorced woman gets all the rights to which she is entitled.

"A new procedure for divorce has been established, requiring the court's prior authorization. Divorce cannot be duly registered until all monies owed to the wife and children have been paid in full by the husband. Verbal repudiation, in exceptional cases, shall not be considered valid.

7- "Expand the woman's right to file for divorce if the husband fails to observe any of the conditions in the marriage contract, or if he harms his wife through lack of financial support, abstinence, violence, or any other wrongful deed. This provision is in line with the general legal principle which advocates balance and moderation. Its aim is to promote equality and fairness between husband and wife.

"A provision has also been introduced allowing divorce by mutual consent, under judicial supervision."

Defending Children's Rights

8- "Seek to further protect children's rights by making the provisions of the relevant international agreements ratified by Morocco, part of the Family Law. Children's rights with respect to custody are also to be guaranteed by entrusting custody to the mother, then the father, then the grandmother on the mother's side.

"Should this prove to be impossible, the judge will entrust custody to the relative in the child's family who is deemed most fit to assume that responsibility, keeping in mind the sole interest of the child.

"[The] requirement to provide suitable accommodation for custody children shall be considered separately from other alimony obligations. Alimony cases shall be treated swiftly, within a maximum period of one month.

9- "Protect the child's rights to acknowledgement of paternity in case the marriage has not been officially registered for reasons beyond control. The court shall examine the evidence put forth to prove parentage.

"A 5-year period shall be allowed for, in order to settle unresolved cases, so as to spare children in this situation sufferings and deprivations."

Clarification of Financial Rights

10- "In keeping with the principle of Ijtihad [independent judgment in a legal or theological question], the granddaughter and the grandson on the daughter's side, just like the son's children, shall be granted the right to inherit from their grandfather, as part of the compulsory legacy.

11- "Regarding the management, by husband and wife, of the property acquired during marriage, and while confirming the principle of separate estate for each one of them, the couple may agree, in a document other than the marriage contract, on how to manage and invest the assets acquired jointly during marriage.

"In case of disagreement, they shall resort to the judge who shall base his assessment on general regulations of proof to determine the contribution of each of the spouses in fructifying the family's assets."

The New Family Law is Consistent with Islamic Principles

King Muhammad VI claimed in his speech that his goal was to ensure that these reforms were consistent with the following principles:

- "In my capacity as Amir Al-Muminin (Commander of the Believers), I cannot make licit what God has forbidden, nor forbid what He has made lawful;

- "It is necessary to be mindful of the tolerant aims of Islam, which advocates human dignity, equality and harmonious relations, and also to rely on the cohesiveness of the Malikite rite and on Ijtihad, thanks to which Islam is a suitable religion for all times and places. The aim is to draw up a modern Family Law which is consistent with the spirit of our glorious religion.

- "The Family Law should not be considered as a legislation devised for women only, but rather as a code for the family: father, mother, and children. The proposed legislation is meant to free women from the injustices they endure, in addition to protecting children's rights and safeguarding men's dignity. Would anyone of you want to see his wife and children thrown out of their home and into the street, or his daughter or sister treated brutally?...

"As I am determined to preserve the rights of my faithful subjects of Jewish faith, I have seen to it that the new Family Law contains a provision which reaffirms that they shall continue to be governed by the Hebraic Moroccan Family Law…

"These provisions should not be regarded as flawless, nor should they be perceived from a fanatic angle. Instead, you should address them with realism and clear-sightedness, keeping in mind that this is an Ijtihad effort which is suitable for Morocco at this point in time, in its endeavors to achieve the development objective it is pursuing in a wise, gradual and determined manner…"

Strengthening Moroccan Democracy

"I am determined to carry on with all substantive reforms, with the participation of all the forces that count in the nation, particularly our young people, in order to instill in them a sense of responsibility as citizens, and to involve them in the shaping of a democratic nation, firmly committed to solidarity and development. "In this respect, I should like to reaffirm my determination to ensure that this year is devoted to consolidating the main pillars of our nation, namely a stable family, a pioneering school system, and a community-based authority dedicated to serving the public and to strengthening the foundations and institutions of a strong democratic [s]tate."

[1] Maghreb Arab Presse (Morocco), October 10, 2003. The original article appeared in English.

[2] The Malikite rite is one of the four orthodox rites of Sunni Islam and is the common rite in North Africa.

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