Articles 479 and following of criminal code
Abandoning one’s family is an offence condemned by the criminal code. It is committed
by a spouse, husband or wife, who abandons the marital home, without good reason, for a
period longer than two months. Abandonment may arise when one neglects one’s legal
and moral obligation; or forgets to pay maintenance allowance fixed judicially, whether
this maintenance allowance is for one’s spouse, parents or children. Abandonment
occurs when a husband abandons his pregnant wife for more than two months and without good
reason.
The man or woman who commits one of these infractions is punished and imprisoned from one
month to one year and may be fined from Dh200 to Dh2000.
The problem of the abandoned spouse is the time he/she is able to start the proceeding.
Where the Code establishes a period of a minimum of two months for an action to qualify as
abandonment, the code also states that if this period is interrupted by the return of the
spouse, "such a return implies the will to begin family life again", then it
does not constitute abandonment and so is not an illegal act under the Criminal Code.
This leads to abuses, since an insincere husband can disappear repeatedly but never longer
than two consecutive months each time. Returning to his family home protects the husband
from being sued.
What can a woman abandoned by her husband do? She can lodge a complaint to the local court
of her place of residence. When the person charged on abandonment is the father of a minor
the Public Ministry through the King’s prosecutor will act on the complaint. Before
starting the procedure, the court sends an officer of the judicial police to the
irresponsible father to determine what his intentions are. If the man/father does not have
a known address, the police officer mentions this in the police statement and the court
will not take a statement by the accused into account. If the husband returns to the
family home and accepts his family obligations, it is mentioned in court. If the man does
not return he is liable to serve the sentences mentioned before: one month to 1-year
imprisonment and/or a fine of 200 to 2000 Dirhams.
Article 449 and following of the criminal code
We are, of course, talking here about induced abortion, which is the voluntary termination
of pregnancy. Spontaneous abortion or the one necessary to save the mother’s life
will not be discussed.
The law severely punishes the person who helps to abort as well as the woman who requests
to be aborted.
The person guilty of abortion or advising the woman on how to abort is punishable by an
imprisonment of 1 to 5 years and will be fined of Dh120 to Dh500. When death occurs, the
sentence can go from 10 to 20 years. If it is proven that the person found guilty had a
long practise, the sentences will be doubled. On top of this, if the person found guilty
belongs to the medical or the para-medical profession, he/she can be temporarily or
permanently forbidden to practise his/her profession.
Concerning the woman who voluntarily aborted or used means that have been advised to her
to abort, she can be sentenced from 6 months to 2 years imprisonment and be fined Dh120 to
Dh500.
The absent one is the person who disappears
without leaving any word. He does not give any means to get in contact with him and does
not show signs that he will go back to the household. He has disappeared and is not known
to be dead or alive.
Absenteeism is different from abandoning one’s family, and it is punishable by law
even if the absent person has left behind an estate to provide for the needs of his
family.
Two problems arise concerning this: the first one is the management of the absent
one’s estate, the second problem is the situation of the wife married to an absent
person. The Code of civil procedure solved the first problem and the code of personal
status and inheritance (or Moudouwana) solved the second.
Managing the absent person’s estate
Article 263 and following of Code of Civil
Procedure
When a person disappears and his absence is harmful to the running of his businesses,
anybody proving a legitimate interest can request the court to order administrative
procedures to manage the absent person’s estate. A spouse, children, partners or the
public minister of the local court of the place of residence, or the last residence of the
presumed missing one. The judge will designate, by order, a clerk of the court in charge
of managing the estate within the limits and under the conditions that have been set.
This is an emergency measure. The solution to adopt afterwards will depend on the way the
absent person disappeared. If he disappeared under unusual circumstances (war, earthquake,
etc.) his heirs or the public ministry can, one year after the order mentioned above,
submit a request to the judge in order to obtain an order declaring the death of the
absentee. Once the verdict is given, the inheritance is opened to distribution.
Apart from exceptional circumstances, submitted with a request in order to pronounce a
verdict declaring the death of the absentee, the judge will, in the first place, order an
enquiry into his disappearance.
If the enquiry isn’t successful, the judge will pronounce a verdict of absence. In
any case, this verdict will be given if the absentee has reached the age of 80 years old.
But what happens if a person reappears after the verdict of death has been pronounced or
if a person dies leaving amongst his heirs an absentee?
In the first case if an absentee reappears after the opening of his inheritance, his heirs
are obliged to return the estate of the absentee but have the right to keep the incomes
from it.
In the second case, the share that should come back to the absentee’s heirs, for whom
the death verdict has not yet been given, is put in reserve. If the absentee reappears
before the verdict, he gets his inheritance. If he does not reappear, his part will be
added to his own inheritance. Finally, if it can be proven that the absentee died before
the deceased, he does not inherit.
Situation of the woman married to an absentee
Article 57 of the Moudouwana
She may request for a divorce if her husband has been missing for more than one year without a valid reason, even if he has left behind goods and property to sustain her. A judge after receiving a request for divorce can instruct the return to the marital home, or ask his wife to join him, or repudiate his wife. If the judge cannot send a formal demand, he will name a trustee and time limit to get in contact with the absentee. In any case, if the husband does not obey the court order within the time imposed by the judge, the judge will deliver the divorce decree and it will be irrevocable.
We will see in the chapter on divorce requested by the wife, that this would be either revocable or irrevocable. When the divorce is revocable, the husband who executes the litigious point, reason of the divorce, can take his wife back during the period of legal separation, whatever the wife’s dispositions are towards taking up common life again. On the other hand, when a divorce is irrevocable, it is pronounced definitely, and the husband has no right during the legal separation.
Article 83, 3rd of the Moudouwana
Adoption is a legal act by which an artificial parental link is created between two
persons. This choice means that the same legal relationship exists between the adoptive
parent and the adoptee, as the one established by legitimate relation. In the French legal
system, the adoptee takes the rank of a legitimate child, with the same rights and
obligations that this position implies. In Morocco, the Moudouwana takes a
completely different position. It states that adoption has no legal status and does not
attach any benefits of kinship.
The adopted child could not, in any way, claim the same rights as a legitimate child. In
practice, an adopted child will not take the name of his adoptive parents, and will not be
mentioned in their Family Record-Book (Livret de Famille).
The same laws (see marriage restrictions) that apply to kinship do not restrict the
adopted child. Neither will he be entitled to full inheritance rights from his adopted
parents.
The adoptive parent, in order to compensate for what appears to be an injustice, may
appoint his adoptive child as a legatee and he may bequeath him, by his will, up to 1/3 of
his possessions.
Adoption, by definition, does not exist in Muslim law, but is considered a foster care
situation or "kafala."
Who can be considered an abandoned child?
To be fostered, the child must be declared
"abandoned" by a judge. The Dahir n° 1-93-165 of September 10,1993, published
in the official bulletin of September 15, 1993, declares as an abandoned child:
-A child born of unknown parents who is found somewhere;
-An orphan with no legal means of subsistence;
-A child whose parents are incapable of assuring protection and education due to
circumstances beyond their control;
-A child whose parents are separated and cannot assume their responsibilities to protect
and provide moral guidance.
The King’s prosecutor or a third party (orphanage, for example) can order the Local court of the child’s locality to declare that child abandoned for the reasons previously mentioned.
The Juvenile Judge assigned to the Local court assures the tutoring of abandoned children; even those placed under kafala. Any exit from Morocco of the person responsible for the child’s care, accompanied by the abandoned child, is subordinated to the Juvenile judge’s authorisation and, in the case of authorisation, the Moroccan consular services of the place of residence of the person responsible for the kafala will oversee the child’s situation and control the carrying out of the obligations imposed on the caregiver.
What is the procedure to foster an abandoned child?
Circular N° 54 of February 18, 1983
Only Muslim spouses married for more than three years are allowed a kafala. They have to submit their request to an administrative commission set up for that purpose in each province or prefecture. The following documents must accompany all requests:
A notarized copy of the marriage certificate;
A certified photocopy of the two spouses’ identification cards;
A proof of salary or an income tax returns;
A residence certificate in the name of the two spouses;
The proof of Muslim faith for non Moroccan adoptive parents;
A certificate of good health;
A summary of one’s police record or an anthropometric slip; and a notarized request from the two spouses and addressed to the administrative commission.
The complete commission, after reviewing the file, will carry out a dual enquiry with a representative of the local authority and a social worker. If the investigators give a favourable opinion, the Wali gives his approval for a kafala, registered with two traditional solicitors (Adoul), at the place of residence of the two spouses. The kafala deed is then mentioned on the birth certificate of the abandoned child who must bear, if he is from unknown parents, a family name other than the one of the person securing the kafala.
Adoul (Singular: Adel)
"Adoul " are public officers who are charged with receiving deeds that have to be verified and notarized. Their powers cover all of civilian life, purchasing, selling, donation, will, marriage, and repudiation. They are traditional solicitors, different from modern solicitors by being the only ones permitted to intervene in the personal status area. For example, a Muslim Moroccan can make a donation only through the Adoul Ministry. Until May 6, 1983, no title or university qualifications were required from candidates for an Adoul position. It depended on the Ministry of Justice, for which competence was gauged from a professional exam. Today, Adoul hold a degree in law and belong to an independent corporation.
Articles 491 and following of the Criminal Code
It is the act of a married person of having sexual relations with another person other
than his/her spouse. Adultery is an offence severely punishable under the Criminal Code;
it is possible to be sentenced to up to two years’ imprisonment. It is a moral
offence; it does not disrupt public order but only hurts the home of the injured spouse.
Only the injured spouse can lodge a complaint against the adulterer. (The exception is the
Public Ministry, which may act on behalf of the husband when he is outside Morocco.) The
plaintiff may withdraw the complaint at any time, including after a condemnation. The
complaint is withdrawn. It will stop the effects of the condemnation of the adulterous
spouse. A withdrawal will not clear charges against a co-adulterer.
In France, the law reforming divorce (law of July 11, 1975) cancelled all criminal sanctions against adultery. Adultery is solely ground for divorce.
In Morocco, not only does the criminal law condemn adultery, but also it grants latitude to an offended husband who acts in the heat of passion. Article 418 of the Criminal Code states that murder, wounds, and strikes are excusable if the husband inflicts them on his wife or her paramour if the couple is found in the act.
‘Excusable’ does not mean that violence against adulterers can be committed without consequences. The law acknowledges there are special circumstances that excuse violence committed in the heat of passion and these circumstances may be considered in sentencing.
In practice, if a husband catches a wife ‘red-handed’ and murders her or her lover, instead of a verdict of homicide which could result in a life sentence or the death penalty, his sentence can be reduced to between one and five years imprisonment. If the husband in the same situation hits or strikes his wife, and causes permanent disability (blindness, loss of limb, etc.) or leads to death, the initial sentence of 5 to 20 years imprisonment, depending on circumstances, can be reduced to from six months to two-years.
It must be emphasized that if murder and battery are excusable when done by the husband to his wife, there is no law applicable should the opposite happen. There is no legal excuse for the injured wife who takes physical revenge on her husband.
The French Law of July 11,1975 reforming divorce has annulled the excuse that benefited the husband.
How can adultery be established?
Adultery can be established by a written statement by the offended spouse, either by sworn confession, or by producing letters or documents relating to the same statement. This must be verified by a judicial police officer. For the adultery to be verified, the police officer must witness the adultery in the home. This must not take place before 5a.m. or after 9 p.m. Otherwise, the statement is annulled, unless the head of the household gives permission.
Effects of having adultery confirmed
Adultery is not, under Moroccan law, a cause for divorce. The position of the law has no consequences for the husband. Through repudiation, he has all the faculties at hand to dissolve his marriage, without having to give reasons for so doing. One can then wonder what is the husband’s interest in trying to establish that his wife has been adulterous. Practically, unfortunately, it will enable him to put pressure on keeping their children. By threatening to complain to the police and having her sent to prison, the husband has all the chances on his side to keep their children.
As far as the wife is concerned, the problem is not about keeping her children but to be able to obtain the divorce. The law limits the reasons for a wife to claim divorce. Adultery is not mentioned among the causes. Establishing that a husband has been adulterous will be a means of exerting pressure to allow the wife to dissolve the marriage.
Articles 115 and ff. of the Moudouwana; dahir no. 1-78-952 of April 18, 1979, appearing in the Official Bulletin of May 23, 1979 and completing article 179 of the Civil Procedure Code as it was approved by the dahir of law no.1-74-447 of September 28, 1974; edict no.1-59-338 of October 3, 1959, concerning the ratification of the adhesion of Morocco to the international convention on the collection of food in other countries, published in the Official Bulletin of February, 1969; article 1248 of edict no 1-93-345 of September, 1993, completing the Code of Obligations and Contracts, published in the Official Bulletin of December 1, 1993; article 480 of the Penal code.
Alimony is a legal obligation of certain people towards others. This obligation can be founded in marriage, family relationships or obligations.
Alimony which is due to the Wife
As soon as a marriage is consummated, the
responsibility to care for the wife belongs completely to the husband. Article 115 of the
Code of Personal Status and Succession is very clear on this subject: Every individual
provides for their own needs by their own resources except for the wife, whose care rests
with her husband.
Further on, the Code affirms the principle that no one is bound to cover their
parents’ or children’s board if they cannot first of all provide for their own
needs. But, in regards to the wife, this alimony is always required, unless the wife
renounces this right (let us note that, in the case of the divorce of a young girl who is
a minor, this cannot happen, as a minor does not have the right to make a contract). If
the husband does not fulfil this obligation, the wife has every right to ask for a
divorce.
The care for the wife, in marriage, is evaluated by taking into account the social
situation, the resources of the husband and the usual customs of society at large.
Regarding a repudiation which can be reversed, the wife who moves from the location where
she has the legal right to withdraw her alimony, with no valid reason and without the
consent of her husband, loses the right to alimony, unless she is pregnant, in which case
she retains this right.
Besides repudiation, the wife who is not pregnant and abandons the couple’s home,
does not lose her right to alimony but this will be suspended by the judge until she
returns to their home.
Alimony For Children
The father is responsible for caring for his children. For girls, this care will continue until marriage and her husband takes over the responsibility for her. For boys, it is "until he is mature, sensible and able to earn his own keep/make a living." The age for legal majority is not taken into account as it is in most other legislation. In any case, if the young man continues his education, the father will be held responsible for providing help until he completes his studies, or, at least until he is 20 years old. Let us not forget that the Moudouwana requires the mother to finance her children if the father is destitute and she has the means to care for them. But this obligation of financial care does not include the father.
Alimony Due for Parents
When the parents are financially destitute or unable to procure resources, the parents’ care required from the children and the responsibility must be shared between them according to their income and not related to their future inheritance rights.
Alimony Based on Obligations
When a person commits himself to pay alimony or board for a third party, whether this person is a minor or adult, parent, child or total stranger, he or she must fulfil this obligation through the courts. A penalty will be incurred if this responsibility is not met.
Decisions regarding alimony are made through an emergency procedure, called le refere. This is a quick process which is used when there is an urgent need to take measures, while awaiting the final judgement. While awaiting the pronouncement of a divorce, for example, the judge gives a verdict in the form of a refere which sets the amount of the alimony which will be allocated temporarily while awaiting the end/outcome of litigation.
This decision will be carried out immediately, notwithstanding any other recourse. This comes out clearly in article 179 of the Civil Procedure Code, which stipulates that, when the judge ratifies an act of repudiation, he customarily makes a by-law which determines the amount due for the wife’s alimony during her waiting period of continence, as well as the place where this payment can be collected, the allowances due to the wife, and the payment of the rest of the dowry, and alimony for the children. The judge also sets the limits for the father’s visitation rights to their children. This by-law must be applied immediately, without exception.
The wronged party must first take action, and then go to court.
The edict of September 10, 1993, brought a positive point regarding regulations concerning alimony due to the repudiated wife. From that time on, when the judge legitimizes a repudiation, he sets the amount of the guarantee that the husband must deposit in the court’s account. This deposit must take place before the Adoul can accept his declaration of repudiation. This deposit is used to guarantee the carrying out of prescribed obligations. This measure assured the repudiated wife that she will benefit from her rights during the first phase of her separation and will not be forced to begin a legal process to get what is due to herfrom a rebellious husband.
Another advantage given to the wife at the time of the judge’s ratification of the act of repudiation, is a consolation giftconsidering she has suffered prejudice if the repudiation is not justified. The introduction of this idea of justification of the repudiation is very important and opens a serious breach in what has been arbirtrary grounds for repudiation for the husband.
Whoever refuses to pay on the due day the alimony to the beneficiary, set by a verdict is sentenced to 1 month to 1 year emprisonment and must pay a fine of 200-2,000 Dirhams, or only one of these punishments.The beneficiary of the almony, upon presentation of the legal decision, summons the debtor through an officer of the judicial police, to take action within 15 days. Failing this, he is restrained by force that is to say, he is sent to debtor’s prison , the prosecuting party having requested this to the King’s prosecutor, whe requisitions police officers to carry this out.
Concerning the collection of the almony outside of Moroccan territory, we must point out that Morocco is a member of the International Convention of Collection of Almony in foreign countries of March 18, 1957, in which the signatory nations commit themselves to carry out the collection of the almonies in their territories , if the almonies have set in another country.
Any almony creditor can solicit help from the authority responsible for sorting out the matter on almony. In Morocco requests have to be sent to the Direction on civil matters of the Legal Ministry, the following documents have to be attached: Family name, first name, date of birth, profession, debtor and creditor nationalities as well as their pictures, the temporary or executory legal decision setting up the almony amount, and an authorization which allows the administration to act in the name of the creditor. When the administrative authority decides it necessary, the requester can be granted legeal assistance.
The signatory country of the Convention which have resyrictions on money transfers abroad, are committed to give priority to tranfers of almony, or to pay for the expenses from legal action governed by the Convention.
The right to alimony continues until the debt is paid. The person who owes alimony is never exempted from this duty.
The initial alimony must remain the same for 1 year, at which time a request for increase or decrease may be received.
The procedures concerning alimony are taken before the court in the district of the defender’s or petitioner’s residence,
Apostasy is the act of publicly renouncing one’s faith. In non-Muslim countries this is a choice linked to personal convictions involving only oneself. In Morocco this is severely sanctioned since it implies the civil death of the apostate. The apostate is dead in the eyes of the law. If he was married, his marriage is dissolved and his inheritance is opened. Furthermore, the Criminal Code punishes whoever tries to shake a Muslim’s faith to convert him to another religion with a six month to three-year imprisonment and a fine of Dh100 – Dh500 (Article 220 of Criminal Code.)
Breastfeeding
Article 112 and following of the Moudouwana.
In Islamic law, milk creates the same link of parenthood as blood. The child that has been
breastfed by a wet nurse will be considered as a brother or sister to the wet nurse’s
children. The child, as well as other children she nursed, when grown, can not marry the
wet-nurse’s children. The same legal restrictions on marriage as are imposed on
relatives by blood or marriage alliances will apply.
Only the breast-fed child will be considered as the child of the wet-nurse and her spouse,
not his brothers and sisters. Marriage impediments will only apply only to this first
degree of parenthood and not for the parents or other relatives of the brothers and
sisters breastfed by the same woman. However, for marriage impediments to apply,
breastfeeding must have taken place at five different times during the first two years of
the child’s life.
A mother breastfeeding her child while married or during the abstinence period following a
revocable repudiation, cannot ask for payment, but she is entitled to payment during the
abstinence period following an irrevocable repudiation. The code of personal status and
inheritance allows payment for breastfeeding, since it stipulates in Article 12 that
payment for breastfeeding a child will have to be paid by the person who is in charge of
looking after him. Article 14 adds, when the father is poor, the nurse who graciously
offers to breastfeed the child is preferred to the mother who demands a payment."
This breastfeeding must take place at the home of the mother.
Child Benefits
Child benefits are paid by the Caisse Nationale
de Sécurité Sociale to any person who receives a salary, is insured, lives in
Morocco, who can justify 108 continuous or discontinuous days of subscription for six
months of registration. A monthly benefit of Dh80 is paid for each child, whether
legitimate, illegitimate, adopted or orphaned, who is regularly cared for and under the
charge of the insured person.
Benefits are paid for up to a maximum of six children when they are declared to the civil
office and four children maximum when they are not declared. The benefits are paid up for
children up to 12 year old for the children under the charge of their parents, up to 18
years old for those studying in Morocco or abroad and for handicapped children who are
looked after by the insured person or those with terminal disease.
The benefits are paid in cash and in kind. As far as the cash part is concerned, the rate
is uniform, for all salaried persons of Dh36 per month, whatever the salary is. It is paid
to the husband, when the two spouses are both insured. In case of divorce, the benefits
are paid to the parent looking after the children.
The part in kind is a medical help limited to a monthly reimbursement as follows:
One child Dh300
2 children Dh400
3 children Dh500
4 children Dh600
5 children Dh700
6 children Dh800
The funds for child benefits come from a
membership paid exclusively by the employers.
Civil Status Acts
Civil status was established in Morocco by the Dahir of September 4, 1915. It was compulsory for all-French citizens and foreigners living in Morocco, but remained voluntary for national citizens. With enactment of the Dahir of March 8, 1950 declarations of birth and death became compulsory for Moroccan citizens, who were also required to choose a family name, when they did not have one yet. This name could not be chosen arbitrarily, but had to be linked to the father, or by default, the uncle on the father’s side or the elder brother.
The Dahir n°1-96-97 of August 2, 1996, published in the official bulletin of November 7, 1996, has limited the choice of the first name, in the sense that it must from now on reflect traditional Moroccan characteristics and must not be a foreign first name, nor a family name, nor be composed of more than two first names, nor a city name, village or tribe. It may not be composed of any nickname or title as Moulay, Sidi or Lalla, either.
Birth declarations
Births must be registered within one month with the civil status officer of the district where the birth occurred. Once this time has lapsed, an order of the Local Court is required authorise the civil status officer to register a birth.
The birth may be declared by the father, the mother, or by default, by any person who attended the delivery. When the father or the mother are unknown, this fact will not be mentioned in the civil status act.
Death declarations
Death must be declared within three days. A relative can make declarations or any person having precise information about the person whom died.
Name changes
Any person that has a serious and valid reason for changing a name (ridiculous name, leading to confusion etc…) can ask for a change and send a request to the local court of the person’s district of residence. The judge remains sovereign in the validity of the reasons given for the name change.
Besides, the edict of August 2,1996, declares that any Moroccan legally registered in Morocco or abroad under a foreign first name, or one that does not reflect a traditionally Moroccan character, may request to be legally authorised to change his first name. Traditional Moroccan first names cannot be changed except by a legal decision. Demands for changing a minor’s first name has to be formulated by their legal guardian.
Code of personal status and inheritance (Moudouwana)
Personal status is the legal classification of a person by nationality or residence,
whereas jurisdiction is the legal classification according to the place of the dispute,
without taking into account the nationality or the residence of the individuals involved.
In Morocco, the personal status is based on religion, not nationality.
The Code of personal status and inheritance, set up in two steps (1957 and 1958) is the
rule for Moroccan Muslims. The status and civil capacity of Moroccan Jews are set up by
the rules of the Code of Moroccan Jewish personal status, whereas the status and civil
capacity of Muslim foreigners will be set up by the Moroccan Islamic rules, independently
of the tradition followed in the person’s country of origin. Only his membership in
the same religious community will be considered. This way, even a Muslim Turk, who in his
country would be governed under one civil status since Turkey has adopted the Swiss Civil
Code, will be ruled in Morocco by the rules of Moroccan Muslim law of malekite tradition.
The same way, a Tunisian will be in a position to practise polygamy and repudiation, two
institutions abolished by Tunisian law.
Moroccans not subject to either Muslim or Jewish law will be subject to the Moroccan Code
of personal status and inheritance, with some restrictions. Polygamy will be forbidden,
rules on breastfeeding will not apply, divorce will be granted after an unsuccessful
attempt of reconciliation and a legal inquiry into the reasons about requesting divorce.
In case of a jurisdictional dispute, the law of the country of the male applies.
The Code of personal status and inheritance is composed of six books. The first refers to
marriage, the second to its dissolution, the third is about kinship and its effects, the
fourth concerns capacity and legal representation, the fifth is about the will, and
finally, the sixth is about inheritance.
Article 490 & 493 of the Criminal Code
Cohabitation is when a man and a woman are not legally married but live together as
husband and wife. To suppress cohabitation would be to admit that it exists. But the
Criminal Code does not consider this hypothesis. It rejects the fact that two people of
the opposite sex can have sex although they are not married. This offence is punished by
one month to one year in prison. The proof of the offence is established, as for adultery,
either by a written statement of the legal police officer, either by confession from
letters or documents from the person charged, or by legal confession.
The Public Minister acts upon a simple denunciation. In a country where family rights are
exclusively based on marriage and blood relationships, there is no place for moral
obligations that have not been legally recognised. In France, these obligations exist
since cohabitation is open and notorious. Cohabitation is acknowledges as the equivalent
to marriage.
While cohabitation does not provide all the guarantees found in legal marriage, after the
death by a cohabitor a judge has the authority, depending on the case, to decide the legal
rights of the survivor. For this reason, in France, we have often seen tangible
compensation granted to the survivor.
Consolation Gift
Article 60 of the Moudouwana, Article 1248
of Dahir of obligations and contracts
When a husband decides to repudiate his wife, the law orders him to give her a consolation
gift, separate from alimony, the amount will be fixed according to the husband’s
income and the repudiated wife’s situation. This does not apply, however, to the wife
who has been repudiated before the marriage has been consummated.
Also, Article 1248 of Dahir with Law No. 1-93-345 of September 10, 1993, which modified
the code of obligations and contracts, has elevated the consolation gift to a privileged
debt, which means that it has priority over all other debts. Also, it has been decided
that the consolation gift will be evaluated according to the possible damage suffered by
the wife because of an unjustified repudiation.
Custody (Right of)
Articles 97 and following of the Moudouwana, Articles 476 and 477 of the Criminal Code
Attribution of Custody
One of the particularities of Islamic law is in the devolution order of the guardianship. Article 99 1st of the Moudouwana says that in case of marriage dissolution, the mother is first appointed the guardian of the child, and then, in order, the following persons:
The father,
The grandmother on the mother’s side,
The great grandmother on the mother’s side,
The aunt on the mother’s side,
The aunt on the mother’s side [consanguine, same father but different mothers],
The aunt on the mother’s side [uterine, same mother but different fathers],
The grandmother on the father’s side,
The great grandmother on the father’s side, one line or the other,
The child’s sister,
The aunt on the father’s side,
The child’s father’s aunt on his father’s side,
The child’s father’s aunt on his mother’s side,
A niece from a brother,
A niece from a sister,
A brother,
A grandfather on the father’s side,
A nephew from a brother,
An uncle on the father’s side,
The sons of the last mentioned.
The Dahir of Law 1-93-347 of September 10, 1993 in
the official bulletin of 1st December 1993, has modified the appointing of a guardian to
the children. Whereas the father did not appear among the persons qualified to be
appointed as a guardian to his children, a measure that can be understood probably in the
light of polygamy in Morocco, as this could have been a threat to the child’s
well-being if he was raised by co-spouses, the father now is in the second position after
the mother.
From a moral point of view, it is only fair, since looking after a child is part of the
marriage obligations imposed on the mother and the father while married, procreation being
the foundation of a Muslim marriage. It is, however, surprising to notice that after years
of feminine demands to revise the Moudouwana, to give women more rights, the most
important modification has been done in favour of men.
Loss of parental rights
When the father has not been appointed the
guardian of his children, he retains, however, a right to having a say in their education,
so if the legal guardian went to live in another city other than the one where the father
lives, and if it became difficult for him to supervise his child’s living conditions,
the guardian could lose her custody rights and the next relative on the pre-established
list would be appointed the guardian, unless the father accepts the situation before a
judge.
We are facing a crucial problem which often happens when a mixed couple divorces, where
the husband is a Moroccan Muslim and refuses to let his former wife be the guardian of
their children because she would like to leave Morocco to go back to live in her native
country. Also, if the guardian’s religion is not the same as the child’s, the
right to custody will only be allowed for five years if the guardian is not the mother. If
the guardian is the child’s mother, she will normally be appointed the guardian,
unless she does not bring her child up in the Muslim faith, in which case she will lose
custody of the child. Husbands often use this point when mixed couples are divorcing, when
the wife is not the Muslim.
If the guardian has a contagious disease or a disease preventing her from looking after
the child effectively, she will lose custody and next person in line will be appointed.
The guardian’s marriage with a person other than the executor or a close relative of
the child, will cause her to lose her custody, unless she is also appointed executor, or
that she is the only nurse that the child accepts, in which case she will keep her right
to custody.
If anyone included in the list mentioned above knows of a mother who has married someone
other than the executor or a close relative of the child, and has kept silent more than a
year, he or she will lose their right of custody.
Finally, the guardian whose misbehaviour would jeopardize the child’s good education
will lose her or his custody.
Duration of the guardianship
The duration of custody rights varies according to
the child’s sex. If it is a girl, this right applies, with the Moudouwana of
1957, up to the time, she marries and her marriage is consummated. If the child is a boy,
it applies only up to puberty.
Since the Dahir of 1993, which modified some articles in the Moudouwana, custody is
maintained up to 12 years old for a boy and 15 years old for a girl. After these ages, the
children will have the possibility to decide to live with the person of their choice among
the people mentioned in Article 99 of the Code of Personal status and inheritance.
As we can notice, the legal age for majority, which means 20 years old, is not taken here
into consideration. Custody and guardianship should not be mixed up. The father ensures
the legal guardianship of a child until he reaches 20 years old, even if the mother is the
guardian.
Visitation rights
The judge determines visitation rights for a parent who was not appointed guardian of a child, and traditionally it is once a week. The person who is in charge of the child’s custody and refuses to present him to the parent who has a legal right to see him is committing an offence and can be sentenced to prison for a month, and up to a year. On the other hand, when the person who has the right to visit the child refuses to give him back to the person who has been appointed guardian, he can be sentenced to imprisonment from one month to a year and will have to pay a fine of between Dh120 to Dh1000. If the person found guilty had also lost his or her parental rights, the jail sentence could be elevated to three years.
Right of custody extent
Child custody does not imply right of guardianship; it implies bringing up a child in the best possible conditions and looking after his interests but does not imply the possibility of exercising the child’s rights in his name – which remains the father’s or the guardian’s responsibility.
We have to emphasize that the change took place for the mother since the Dahir of September 10, 1993, whereas before, she did not have the right to legally represent her children, it is now given automatically to her in case of death or loss of legal capacity] of the father with however, a sizeable discriminatory restriction, since the mother will be unable to sell the minor’s belongings, until the judge has given the authorization.
Denial of paternity
Article 90 & 91 of the Moudouwana
It is the legal action by a husband who denies his wife’s child. A denial
concerns only children conceived during the legal period of marriage. The pregnancy time
is fixed at a minimum of six months by the code of personal status and a maximum of one
year. Only a child born during this period can be denied. A child who is born less than
six months after his parents’ marriage or more than a year after the dissolution of
their marriage will not be considered legitimate if paternity of the child is denied.
If there is a doubt, a judge can lengthen the pregnancy period allowed to more than one
year; after being advised by expert doctors. The husband who denies a child has to
establish that he can not be the father, by demonstrating, for example, that there was a
separation, so that he could not have had sex with his wife at the time the child was
conceived. To defend herself, the woman will have to prove that her husband had tacitly
accepted the situation but kept on having sex with her.
In any case, the judge makes the final decision. The rejected child will be considered as
an illegitimate child. There will be no rights or obligations between him and the husband
of the child’s mother. But he will be bound to his mother whose name he will bear.
Division of property
In Moroccan law, the spouses do not have free
choice regarding the marriage regime under which they live. In contrast to French law, in
which the future spouses specify their marriage regime by contract, Moroccan law only
recognises the policy of the division of property. In this regime, the spouses are free to
administer their property as they see fit.
The Moudouwana makes no mention of the husband’s property, except in relation
to his responsibility to provide for his wife’s needs. Polygamy would certainly
render a sharing of property very difficult and would quickly divest the polygamous
husband of his means, should his marriages be dissolved.
On the other hand, the Moudouwana governs the property of the wife. We have already
seen, in the chapter on the dowry, that this dowry is the exclusive property of the wife,
who can dispose of it freely, without being held responsible for any contribution to the
household in exchange. Furthermore, article 35 bestows on the wife the freedom to govern
and dispose of her property without any restriction by her husband, who has no right
whatsoever over the property of his wife.
Article 115 states the principle that every individual provides for his own needs from his
own resources, except for the wife, whose care is incumbent on the husband.
The principle of separation of property has an immediate, practical consequence, which is
the simplification of the inheritance of the spouse who dies because there will be no
common property to divide.
The only problem that could arise would be that of the distribution of furniture found in
the couple’s home should the marriage bonds be broken. It is often difficult to prove
which of the spouses bought the objects acquired during their life as a couple.
The Code, in articles 39 and 40, solved this problem in a practical way, by deciding that
if there is a dispute regarding the ownership of household furnishings, due to the absence
of clear proof, an oath will be taken by the husband to claim those things that are
normally used by men, and the same will be done by the wife for objects normally used by
women. If the dispute concerns other merchandise, these will be given to the spouse, who
can justify ownership by a proof of purchase.
Those objects that are used by both men and women will be, upon the sworn word of each of
the spouses, shared between them. The same procedure will take place for any disputes
arising between the surviving spouse and the heirs of the deceased spouse.
Article 53 and following of the Moudouwana
The Code of Personal status and inheritance gives two possibilities dissolution of the
marriage while the two spouses are alive: repudiation and divorce.
Repudiation is, as we shall see further on, the possibility given to the husband to
dissolve his marriage in a unilateral way without having to give a motive. Divorce, on the
other hand, is the wife’s right, but the law strictly limits it.
In the Code, there are five reasons given for divorce:
Not providing for the wife’s needs
A latent defect in the spouse, that makes the marriage contract voidable
Ill treatment
Husband being absents
Following the continence or abandonment oath
"Any divorce delivered by a judge is irrevocable, except for divorce resulting from the continence oath or the one resulting from not being provided for", reference Article 66.
When the divorce is revocable, the husband who will show that he is willing to take responsibility, which was the reason for his wife to require divorce, will be in a position to resume living with his wife, even if she does not wish it, as long as the husband can demonstrate this within the three months following the judgement which delivered the divorce.
Divorce for not taking care for one’s wife
When the husband is present but refuses to take
care of his wife, she can ask for a divorce. The judge will condemn the husband for
failing to meet his obligations. If he does not do so within the period agreed upon,
divorce is delivered immediately.
This type of divorce is revocable, which means that the husband has the right to take his
wife back, after the judgement has been passed. During the period of legal separation
following the divorce decree, if the man is willing to agree to take care of his wife.
Divorce for latent defect
A wife who discovers that her husband has a fatal
disease or an illness with a recovery period of at least a year and refuses to live with
him, whether the disease started before or after the marriage, will be granted divorce if
the recovery has not taken place after a year of time fixed by the judge. The diseases
mentioned by the Code are insanity, leprosy, tuberculosis, and elephantiasis.
If the disease is of the genital organs of her spouse, the wife will be granted divorce
immediately, as long as she did not know about it before getting married, and only
discovered it after her marriage. On the other hand, if the husband discovers one of these
flaws with his wife, he could repudiate her if he wishes. The problem for him will not lie
in dissolving the marriage, since repudiation can be carried out without needing to state
a motive, but with the dowry – if the husband has been misled by his wife, he could
claim back the dowry given. If his wife’s matrimonial tutor has misled him, he would
be in a position to claim back the whole dowry from him.
In contrast to divorce for neglect, the divorce delivered by a judge for latent defect is
definitive and irrevocable. The husband will not have any right to his wife during the
three months of legal separation.
Divorce for ill treatment
If a wife states that she has been a victim of ill treatment from her husband to the point that her married life has become impossible, the judge can deliver the divorce after an attempt at reconciliation has proved unsuccessful. As in the previous case, the divorce is irrevocable.
Divorce for husband being absent
See absenteeism.
Divorce following the continence or abandonment oath
When the husband takes an oath to abandon his wife’s bed, she can demand divorce and it will be delivered if the husband has not changed his mind after a four-month period. This divorce is revocable.
How to initiate a divorce procedure?
The person must bring a request to the Clerk
Officer of the local court of the area where the couple lives. The judge responsible for
the matter calls the spouses, in the first place, to try to reconcile them. If the
reconciliation is successful, the judge delivers an order to state this, which
automatically ends the procedure started.
If the reconciliation has not been successful, either because the spouses could not agree,
or if one of the spouses did not appear, the judge delivers an order of failed
reconciliation and takes conservative temporary measures concerning the alimony of the
wife and children. He also designates who is to be responsible for looking after them.
These decisions are executed immediately even if the husband wants to appeal.
Appeal is suspended, means that the decision given at the local court cannot be executed
if one of the parties lodges an appeal within 30 days of the decision being pronounced. It
is, in a way, a suspended time that has been granted to the litigant to give another
higher jurisdiction, the Court of Appeal, time to make another decision regarding the same
dispute.
This two-phase jurisdiction is a guarantee of a fair judgement for the litigants.
But when the petitioner’s rights could be infringed upon by the duration of the process, as is the case in setting up the alimony when the two parties are divorcing or the wife is repudiated, the judge can order to apply measures, called temporary executive measures, to protect the petitioner’s rights. The judge will, after an investigation, come to a decision on the dispute.
It should be mentioned that Article 9 of the Dahir on the civil status of French people and foreigners in Morocco says that French and other foreigners living in Morocco have the right to seek divorce or to separate under the conditions fixed by their own national law. This way, a French woman or a woman from another country, married to a Moroccan and not converted to Islam, will be able to seek divorce before the ordinary court of Morocco. The divorce could be granted for reasons, which are not included in Muslim law, but are in accordance with to the laws of the foreign country.
The classic example would be the one of the French woman married to a Moroccan who is granted divorce by the Moroccan court for the serious offence, according to French law, of her husband having taken a second wife. This act is far from being a serious offence in Morocco, since polygamy legally exists. The principle in Morocco is that the status and civil capacity of French people and other foreigners are governed by their national law." (Article 3 on the condition of French people and foreigners in Morocco).
But the opposite does not happen. French courts, for example, will not accept this in France. A repudiation of his wife by a Moroccan Muslim has no legal effect in France, even if she is a Muslim, legal divorce being the only valid way under French law to dissolve a marriage, and the grounds for divorce must be according to French law. We have now come to the dilemma of exequatur, which refers to the enforcement by one country of legal decisions, made by another country. A court, faced with a request in exequator is free to verify if the decision delivered by the foreign tribunal is fair and in line with its own public order, that is, to its moral and fundamental principles, before ordering the decision to be enforced.
It is the act giving, while still alive, all or part of one’s belongings to a person who accepts this donation. This person can either be an heir of the donor or a stranger to him. This is the fundamental difference between a donation and a legacy, which cannot be granted in favour of an heir. A Moroccan Muslim can donate all his belongings, which seems a paradox when one realizes how meticulously an inheritance of a dead person is governed. Heirs are not protected by any legal reservation.
Who can donate?
Apart from people subject to a legal ban, anyone can donate. Bans apply to minors, incapable adults, bankrupt persons, insolvent debtors, and people sentenced to death, or those with a fatal disease. Although, for the person afflicted with a fatal disease, the donation will automatically become a legacy and will follow the rules for legacy, which means that it may benefit a non-heir and may not exceed one-third of the inheritance patrimony.
Who can receive?
Any individual or entity can receive, including minors and incapacitated persons will receive through of their tutor, since this can only enrich their patrimony. The code of personal status and inheritance does not talk about the legal aspect of donation. No sacramental deed is needed for a donation to be valid, which means no certified deed (before the Adoul), nor a deed (sous seing) private (written and signed deed which is between two or more parties, without the help of a public officer). Donation is valid even if made orally, as long as the intention to give has been clearly expressed by the donor. What is given becomes immediately due to the donee.
Problems arise when the donor changes his decision. What legal means may the donor recover possession of what has been given away? Moroccan legal authorities have often discussed the question. There are great difficulties adapting malékite rites to daily life.
To summarize, we can simply say that in case of a dispute, all the donee has to do is to prove that he accepted the donation, for example, by starting the necessary procedures to take possession of what was donated, or by undertaking projects based on this new contribution to his patrimony.
Only if the donor’s death occurs before the donee takes possession of the donated property may the donation be annulled. The donee’s death does not annul the donation since his heirs can claim it from the donor. Once the donee takes possession of what was donated, the donation becomes irrevocable and the donor will never be in a position to take it back. This principle is different in French law, in which a donation can be rescinded for ingratitude on the part of the donee if, for example, he refuses, to give the donor an adequate living allowance, or if the donor finds some relatives who did not exist at the time he made the donation.
Donations are subject to taxation. Between spouses, parents and children, the rate is 1% for the first bracket going up to five million, the remainder is taxable according to the normal rate of mutation rights, with, a 50% reduction on buildings used as a residence. The full rate of mutation rights will be applied to donations between collateral relatives.
Article 16 and following of the Moudouwana,
Article 1248 of Dahir of obligations and contracts
Originally in the West, a dowry was the price paid by a suitor to the father of a young
girl he wanted to marry. Then little by little, fathers began to give it directly to their
daughters in order to help them to settle. Dowry then took on the significance it has
today: the wife’s contribution to the couple setting up a home. This rather symbolic
contribution, is rarely a necessary condition to validate a marriage.
In Muslim countries and in Morocco in particular, dowry is an indispensable condition to validate a marriage. It is given by the husband to benefit his wife, who is becoming his exclusive property. The wife can use it as she likes and does not have to invest it in the household. The husband can not ask his wife to contribute in cash, or furniture, or land, belongings or clothing. A dowry is, somehow, the counterpart to the division of property, which is the only settlement applicable in Moroccan law.
This aspect of Moroccan law is understandable when the wife became widowed or divorced, since in most cases she found herself with no resources.
Dowry can either be in cash, moveable property, or land. There is no minimum or maximum fixed amount; it is up to the husband. Traditionally, the higher the dowry, the higher the interest shown by the suitor in his fiancée. It is to be mentioned that in certain Moroccan contexts, it can be humiliating for a wife to be evaluated according to the goods her would-be husband puts in her dowry, which is recorded in the marriage deed.
This is why now it is acceptable to register a symbolic gold coin. We should also note that no singular change has taken place in men’s attitudes.
Because the dowry is an indispensable part in validating a marriage, it is important to know when it is due. For the wife, it is due for payment not at the time when the marriage is concluded but at the time, the marriage is consummated. The husband cannot ask his wife to consummate their marriage if he has not given the dowry in whole beforehand. The wife who would be willing to consummate the marriage before her dowry has been totally paid will not be in a position to demand the marriage to be dissolved for this particular reason. She could claim her dowry was a simple debt, the marriage by itself cannot be challenged anymore by this debt of the husband to his wife.
Since Dahir of Law No. 1-93-345 of September 10, 1993, completing the code of obligations and contracts published in the official bulletin of December 1, 1993, the dowry is now a privileged debt, which means it has to be given priority for reimbursement by the debtor over any other debts.
In case of repudiation before the marriage has been consummated, the repudiated wife has the right to half the dowry, unless the marriage has to be cancelled for latent defect detected in one or both of the spouses.
In case of contest between spouses on the payment of the dowry, the code of personal status and inheritance takes a very philosophical position. Article 24 states that in case of disagreement between spouses on the payment of the dowry, the wife’s declaration will be accepted if the disagreement occurred before the marriage was consummated and the husband’s declaration will be accepted if it happened after the consummation of the marriage.