1
About some Fundamental changes and societal shifting trends/1
Since 1957 (date of Personal Status Code), Moroccan society has
undergone fundamental Metamorphoses ,
In spite of some small legal improvements, Moroccan society had
been impatiently awaiting a radical reform.
Because of the large polemic, a royal multidisciplinary commission was
sited by His Majesty Mohamed VIth (as Commander of the Faithful),
A number of authorities were mobilized to ensure the compliance of
the reform with Islamic law (like Ministry of Awqaf (religious
endowments) and Islamic Affairs, King’s advisors… and others).
The reform had not limited itself dealing with feminist claims, it also
dealt with the Islamic law, which was the first to introduce
equality, justice and equity into gender relationship (as proved
in the paper)
2
About some Fundamental changes and societal shifting trends/2
The reform was supported and presented by His Majesty the
King in a speech containing wide references to Quranic
verses, Prophet’s sayings, Shari’a principles and the
Ijtihad (interpretation of religious texts)
This was sufficient to protect the Code against any protest in the
name of religion and also to reassure people
The great challenge was :
* To reconcile between modernity and reference,
* To legislate for a society in full expansion and massive
changes, while remaining faithful to Islam.
* One possible way : the Ijtihad (interpretation of religious texts),
allowing the exegesis of Sacred Texts.
3
About some Fundamental changes and societal shifting trends/3
Further, it reached to reconcile Islamic law with international and
bilateral agreements ratified by Morocco (as CEDAW…)
By that way, the reform was largely agreed with adhesion of: lawyers,
conservatives, progresses, feminists, parliament, and society at
large.
The worldwide admiration and praise carried on
(governments, politicians,
researchers, mass media, NGOs, private individuals, UN agencies, etc.)…
Hence, the Moroccan experience was pioneering and inspiring for
many other countries.
Its wisdom and audacity have served as model in France, Algeria and
elsewhere.
4
The main innovations introduced by the Reform
Key achievements:
Many achievements can be classified in the following groups:
* Respect for women’s will and dignity (in 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 her will; recovering the true meaning of guardianship in
marriage [so much confused with the bride’s will], etc.;
* Restriction of polygamy;
* Divorce regulation and guarantee of rights;
* Management of acquired assets (property acquired after
marriage);
* Protection of Child Rights;
* Paternity of children born during engagement (betrothal);
* Recognition of marriages of Overseas-living Morocco Nationals,
etc.
5
1st Axis: Equality and dignity of married couple/1
1- Keeping with the sayings of the Prophet Muhammad (PBUH):
“women are equal to men before the law”;
“Only an honorable man will esteem them (women); and only an ignoble man will humble
them”,
the new Family Code rejected all concepts prejudicing the women
dignity
2- From the Hadith: “Each of you are pastor and responsible... and the
woman is pastor and responsible in her home...”, the Moudawana
placed the family under the joint responsibility of both spouses.
3- In accordance with the Malekite School of jurisprudence, equality was
established between women and men in:
- the age of marriage (18 years),
- between girls and boys under custody who may choose their
custodian at 15 years.
6
1st Axis: Equality and dignity of married couple/2
Equality or obedience!?
In the widely-held customs, obedience is an absolute duty of the Muslim woman,
Wile, contrarily, the pure sources of Islamic law call frequently couple to: dialogue,
consultation, understanding, fulfillment of the mutual obligations:
* “...if they have agreed with each other in a fair manner ...” (Quran, Surah Al Baqarah, verse 233).
* “...And don’t try to harm them by forcing them to live close together... and consult together in kindness...” (At-Talaq (Divorce), 6).
Consultation is certainly incompatible with blind obedience
Then, the relationship within the household consists in: respecting
divine precepts, legislative rules and public order, and by
suitably honoring one’s commitments.
Proof : the Quran itself ordains clearly believers to disobey all illegal order,
even when it’s issued by one’s own parents, let alone the husband:
“We have enjoined on man kindness to his parents; but if they strive to make you to join with Me that of what thou hast no knowledge,
don’t obey them…” (Surah Luqman (The Spider) (29), verse 14).
Many other Hadiths call for: affinities with women, without omitting,
however, to require from women to show reciprocal good manners…
(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)
7
1st Axis: Equality and dignity of married couple/3
Co-management of the household
Another huge confusion (between Islam & customs): “Family is placed
under the exclusive responsibility of the husband”…
In the pattern of the Islamic philosophy, consultation in decisions, management
of family affairs, children and family planning, is a duty for both spouses
Furthermore, Quranic verses and Hadiths consecrating gender equality,
emphasise strongly on equality in obligations and duties, and not just in
rights :
“As for them (women), they have rights equivalent to their obligations according to what is equitable” (Baqarah, 228);
“The Beleivers, men and women, are protectors one of another...” (At-Tauba, 71)...
Reviving & purifying Islamic precepts, the new Family Code decrees: “the family
is sited under the responsibility shared by both spouses” (art 51, pphe 3)
Quite rightly, the base of cohabitation, in Islamic philosophy, is:
* justice and not competitive equality;
* complementarily and not equal division of tasks and responsibilities;
* good manners, and not exploitation or humiliation
The aim is the household balance, stability, wellbeing and safety of everybody, especially
8
children
2nd Axis: Optional Matrimonial Guardianship/1
Short overview of matrimonial guardianship in Islamic law/1
Dissimilarity between consent and guardianship (Wilaya )
Wilaya meaning:
Unlike what people think, Wilaya doesn’t imply forfeiting the will of the
prospective wife, nor substituting it by the will of the matrimonial
guardian.
It rather means: Guardianship, support, consolidation and protection.
The Quranic verses and Prophet’s Hadiths are conclusive to this effect :
It is the prospective wife who must give her consent; otherwise marriage
shall be null and void.
According with 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”
(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)
)
9
2nd Axis: Optional Matrimonial Guardianship/2
Short overview of matrimonial guardianship in Islamic law/2
Unfortunately, the declines of the Muslim societies impacted women situation
Hence, customs discard women, and intolerate their presence in
marriage ceremony (formal procedure), which becomes an
exclusively masculine and close audience.
Further, marriage guardianship became, in practice, a “blank signature”
in favor of the matrimonial guardian
In the end, the exchange of consent has been, in the collective memory,
identified with matrimonial guardianship
The Moudawana of 1957 (in spite of its Islamic inspiration) has been
fed by customs having excluded women from the nuptial ceremony,
even if it (Mw) talked of the wife’s consent
It should be noted that for the different schools of jurisprudence, the
bride’s consent is the pillar of marriage
Except that for some, her consent is deemed to be insufficient for the
validity of marriage
10
2nd Axis: Optional Matrimonial Guardianship/3
Matrimonial guardianship in the new Moudawana
Recall: Quranic verses and Prophet’s sayings accord to women the entire
capacity , will and freedom to conclude marriage herself or delegate it :
“Do not prevent them (women) from marrying their husbands, if they mutually agree on equitable terms” (Al Baqarah, 232)
* Based on several such precepts, the new Code recognizes matrimonial
guardianship as a specific right to woman… She may conclude
marriage in person or willingly charge another person to do it
(Article 5 of Mw: Matrimonial guardianship (wilaya) is an exclusive right of woman;
she may conclude her own marriage, delegate or ask support of another person)
* Of course , the old Code recognized (timidly) that right but without
any guaranty in terms of the procedure used.
* The reform has the merit to introduce several measures protecting
women’s will
11
3rd Axis: Restriction of polygamy/1
Polygamy in Islamic law /1
Shari’a 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
By way of restriction, the Quran put a set of rigorous conditions on
polygamy
Lessons learned from Islamic law:
Two verses govern Islamic polygamy philosophy:
1- The first one: polygamy would be allowed only to meet difficult social
situations or to surmount much complex phenomena produced by the
difficult circumstances (such as orphans…), slavery, precariousness…. that
prevailed in the past
So, marriage was one of many other solidarity institutions intended for the
integration of abandoned children, slaves, etc.
12
3rd Axis: Restriction of polygamy/2
Polygamy in Islamic law /2
2-
Despite 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 restricted point of relief in case of
extreme necessity and for fear of the abuse of polygamy by men , the
same Quranic verse warns strongly 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
(“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))
3- But, aware that fairness is practically impossible, the second verse
decrees that whenever unfairness is feared, polygamy is prohibited:
“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)…l” (An-Nisa' (Women), verse 3).
13
3rd Axis: Restriction of polygamy/3
Polygamy in Islamic law/3
The two verses combined, let us deduce the following principles:
* Polygamy rules have been gradually introduced to avoid any disturbance
of the social order. The context had been hostile to any restriction.
So, a first rational call was to restrict polygamy and reveal its exceptional
character (in case of fear not to be just to orphans (slaves)
* Polygamy is banned in principle, unless it is proven to be the panacea for
dealing with complicated social phenomena. The Islamic Law made
serious efforts and invested various institutions to combat slavery (&
prostitution, pedophilia, etc.) Polygamy is part of this
multidimensional strategy (‫)…زكاة كفارات صدقات‬
* Better still, If marriage even with a single wife is intolerable when
marriage virtues and goals are not achievable, how can one allege that
polygamy is allowed without limitations?
14
3rd Axis: Restriction of polygamy/4
Polygamy in Islamic law/4
So, the Quranic verses 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
This conclusion is also corroborated by the Prophet’s Hadiths made when his son-in-law
Ali (husband of Fatima Zahra), expressed his desire to get a co-wife to Fatima Zahra. The
Prophet showed very 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!!!.... "
It is worth recalling even if Islam encourages marriage (for the virtues marriage
brings to the individual and society), he never fails to advise believers against
marriage even with one wife, when material, moral or psychological
circumstances do not guarantee the establishment of a balanced family…
"Let those who find not the wherewithal for marriage keep themselves chaste, until Allah gives them means …" (An-Nur, verse 32)…
In Hadith: «O young people! Whoever among you can marry, should marry… and whoever is not able to marry, should fast…
The case of necessity, in the Islamic logic, must be assessed at fair value and it is
strictly controlled by Quran: "...
“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)
15
3rd Axis: Restriction of polygamy/5
Moroccan reform: innovation or revival reference?/1
Inspired by wisdom of authentic Islamic sources and after a calm and intelligent
reading, Moroccan Family Code recovered the Islamic philosophy of polygamy.
So, in principle, polygamy is prohibited, except in extreme case of force majeure,
under drastic conditions, submitted to the judge authorization.
This legislative attitude (neither total prohibition nor unlimited authorization) aims
to avoid recourse to a “de facto”, but illegal, polygamy, as in several countries,
from North and South, which have totally banned polygamy.
Drastic jurisprudential conditions required by the new Code
Judge seized for polygamy, has to:
* Summon the first wife, try reconciliation;
* Encourage the husband to go back on his plan
* Advise the second prospective wife (that her would-be husband is already
married)
In spite of the positions of the parties concerned, the judge, who is required to
ensure the welfare of the family, has discretionary power to refuse
16
3rd Axis: Restriction of polygamy/6
Moroccan reform: An innovation or a revival reference?/2
Rigorous procedure required by the new Code
The strict procedure decreed by the code is:
The husband should submit to the Court a request wherein he states
exceptional objective reasons justifying the legitimacy of his desire
of polygamy;
He has to join evidences of his financial situation;
The judge shall not authorize polygamy unless he makes sure of :
* The veracity of the husband’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 possible for the woman whose husband desiring
polygamy to divorce
17
3rd Axis: Restriction of polygamy/7
Moroccan reform: Innovation or Revival reference?/3
Court shall not authorize polygamy in the following cases:
* When the wife imposes the renouncing of polygamy on her
husband (in marriage contract);
* When the husband fails to justify his application for polygamy;
* When presumptions led judge to fear injustice among the wives;
* When financial resources or capacity to maintain the two
families seem to be insufficient…
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,
educational and financial needs.
Result of that rigorous system: less than 0,03% of polygamous
families in Morocco ‫ زيرو دوت زيرو برسانت‬.
18
4th axis: Management of property acquired after
marriage/1
The principle in Islamic Law
Islamic Law adopts tow juxtaposed principles:
1- separation of spouses’ patrimonies (separation of their
respective property);
2- Partition of properties acquired by spouses during marriage
(by one's own efforts)
So, Family Code invites Spouses to draw up a deed defining the
management of respective properties (art. 49, new Code)
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: work, efforts… of each spouse (art. 49,
new Code).
19
4th axis: Management of property acquired after marriage/2
Short overview of the principle in Islamic law
The rule of contribution to the accrual matrimonial property is an
original Islamic principle, based on several Verses, Hadiths
and Ijtihad (see details in the paper)
The principle was more or less applicable under the old Code (before
2004 reform), especially when women asked for their rights
(but women didn’t know their rights and didn’t ask for them)
Better still, large and old Fatwa’s were stated early by Moroccan
jurists (such: Mohamed and Ahamed Ibn Ardounen, Alqouri, Ibn Khajjo… in 17th
century and before)
In other regions and Muslim societies, customs were different and
the Muftis were unable to enforce the rule of contribution in
an environment that doesn’t value women’s activities and
domestic work…
That explains at the same time why quite a lot of Muslim societies
are reserved on the contribution rule…
20
5th Axis: Divorce and guarantee of rights/1
Originality of Islamic law/1
* Divorce is the last option, so Islam discourages recourse to divorce.
* Both spouses are able to divorce: both wife and husband 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
* If discrimination there is (at theory level), it benefits women, who
have more options for divorce and are very often exempt from
any payment to the husbands.
* Talaq, as viewed by Islam, is authorized only under restrictive
conditions which, if observed, reduce many social tragedies
* 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 … (art. 78)
21
5th Axis: Divorce and guarantee of rights/2
Originality of Islamic law/2
Shari'a tried to abolish abusive repudiation practices widely
exercised in pre-Islamic society… But, socio-political, legal,
economic and cultural decline favored re-emergence of such
customs and offensive practices degrading for women.
So, the severe criticisms against the concept of Islamic Talaq, are
mostly linked to large confusions between the Islamic
philosophical concept, and the inadequate practices
impacted by customs and ignorance but also by women
ignoring their rights!!!
Wile Shari'a considered null, void and of no effect the excessive
repudiations customarily permitted, and set the
prerequisites for its validity (Orthodox Talaq).
22
5th Axis: Divorce and guarantee of rights/3
In the Moudawana
Reviving Islamic law provisions and based on the Hadith: "Of
permitted matters the most hateful before Allah is divorce”,
the new Family Code decrees that:
* Divorce is an exceptional solution, so everybody must avoid it
* It’s a right equally exercised by husband and wife, according to
specific requirements and procedures (jurisdictional),
* Talaq (or declared divorce) can be pronounced only under the
control of the judge,
* The Code enhances conciliation and mediation. To this effect, the
court must be assisted by several institutions,
* Divorce pronounced by men has been restricted, by reviving
norms and conditions aimed at preventing abusive Talaq.
23
5th Axis: Divorce and guarantee of rights/4
Jurisdictional Procedures and judicial supervision
Before granting Talaq authorization, the court must ensure that:
* The divorced wife and her children has received all the rights,
including alimony, rooming house, part of properties
depending of respective contribution… damages in case of
abusive divorce,
* The same rights must be previously paid when divorce is
pronounced by the wife or by both spouses in terms of
mutual consent or by the Judge (judicial or court-decided divorce
),
Anyway, all dues of wife and children must be paid by the husband
before allowing divorce by the court
24
5th Axis: Divorce and guarantee of rights/5
Jurisdictional Procedures : A new divorce procedure
* A new divorce process was adopted: the Chiqàq (discord).
• It is actually the simplest, cheapest, and the most flexible way
concerning proof,
• In fact that procedure was conceived in Islamic Law to settle
disagreements and promote reconciliation, and not to
precipitate divorce,
* In all cases, the procedure duration is very short: (6 months for all
forms of divorce)
• Concerning Talaq/divorce, before its registration, it is essential
that prior permission from the court be obtained and all due
and rights paid
25
6 th Axis : Rights of Children/1
In an unprecedented way, several new provisions draw have been
seated, taking reference from Quran and Sunnah governing the
parent-child relationship as well as defining the duties of
parents, such:
1- Insertion the rights of children, as defined in Islam and the
international conventions ratified by Morocco, in the Family
Code as parents’s duties;
2- Emphasis on the interest of the child, which must be the
framework for all decisions and actions concerning the child (ex:
devolution of the custody... ).
3- With regard to fixing child support, several criteria have been
introduced or improved. Other elements have been added,
mainly the situation of children before divorce, their living
conditions, education and health…..
26
6 th Axis : Rights of Children/2
4- So, the court must use all the available means (including expert
valuation…..) to know the effective material situation of the
party liable for support payment (husband or father).
5- The vocabularies: interest, protection, protect… are
considerably recurrent in children specific articles.
6- Emphasis on child’s decent housing as expenses incumbent
on the father separately from the support.
7- Children and their mother won’t leave the matrimonial home,
except 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…
8- The urgent character of wife and child support was sitted by
the Reform…
27
7 th Axis : The paternity of the children born during
engagement
Even though engagement is merely a promise
of marriage, and not marriage, it produces
(out of others) the paternity of the child
to the fiancé, respecting naturally
legislative conditions, aiming to prevent
the undue paternal filiations of children
(not of one’s issue)
28
8 th Axis : Improving approaches and procedures/ 1
The promulgation of the reform was accompanied by the High
directives having stressed on:
1- Creating of modern and efficient family courts ;
2- Drafting a practical guide which serves as a reference to the
effect of homogenizing the application of the new
legislative provisions by these courts;
3- Securing further (more) training of executives, particularly
judges, given the discretionary powers and the
responsibilities granted to them by the new Code.
4- Reducing the processing time of family issues and the
enforcement )‫ (تنفيذ‬of relevant decisions (l’exécution des
décisions y afférentes);
29
8 th Axis : Improving approaches and procedures/ 2
5- Creating appropriate premises (locaux convenables) for family
courts;
6- The urgent character of all actions related to family conflicts
7- Setting up a family mutual assistance fund...
By that way the legislator gave finally interest to what we had
largely claimed and proved
Actually, under the old Code, the deficiencies and failures don’t
solely depend on the legal provisions, but rather on
qualified courts, equipment, human resources and
procedural issues ...
see Rajaa NAJI El Mekkaoui: Complicated Issues of Family): Dar Salam, Rabat, 2001-2002)
30
Conclusion
Having set out the key achievements of the Family Code as well as the
crucial approaches and procedures, which reinforce its
implementation (execution), the greatest challenge is the
achievement of these pioneering and promising new
provisions.
How do the family court judges approach and assume their new
responsibilities, which have sociological, psychological and
other dimensions?
Are the family courts prepared to achieve the goals outlined in the
reform and preamble?
Do the paralegal staff, litigants, NGOs, mass media, and the common
man (…) positively contribute to the achievement of the Code
goals and equity, or in short, to the promotion of the family?
These questions, which I have for several times raised, on the occasion
of the annual evaluations of the implementation of the
Moudawana as well as in my publications, constitute the
greatest challenge for Moroccan society nowadays!
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…
31