In March 2023, Morocco’s House of Representatives began to discuss the possibility of amending the country’s nearly-twenty year old family code, also known as the Moudawana, to “create a balance between Islamic teachings and the reality of modern Moroccan society.” This parliamentary debate happened on the heels of a rally in Casablanca that had been organized by eight feminist associations on the occasion of International Women’s Day to call for legislative reforms that would better protect women, including with regards to inheritance and abortion.
Though the Moudawana did introduce a number of progressive provisions when it was first adopted in January 2004 to replace the 1958 Personal Status Code, a number of issues remain in what it entrenches and how it is being interpreted and implemented. In May 2023, Morocco’s Minister of Justice Abdellatif Ouahbi confirmed his commitment toward pursuing new reforms, which he described as “the final fight to end the exclusion and mistreatment of women, which has accumulated in our country for years.”
The Moudawana governs a number of key areas, including marriage, divorce, inheritance, and child custody
The Moudawana governs a number of key areas, including marriage, divorce, inheritance, and child custody. Under the 1958 code, men could engage in polygamy without the consent of their existing wives; the right of women to divorce was tightly restricted; and women could not marry without the approval of a legal guardian, among other things. Over a 30-month period prior to the adoption of the 2004 text, a King-appointed royal commission of religious scholars and legal experts worked to present amendments. When the 2004 Moudawana was finally adopted, a number of key changes came to pass, many of which were celebrated by activists. Some key provisions are highlighted below.
First, the minimum age for marriage was raised to 18 years old from 15 for women. While this was a welcome step, it is not an absolute minimum as Article 20 of the code still allows a family affairs judge to approve the marriage of a minor or minors in cases where there is a “well-substantiated decision explaining the reasons justifying the marriage.” In 2019, 32,000 underage marriage requests were submitted in Morocco and 81 percent of them were approved, a statistic which indicates that the practice of child marriage unfortunately remains prevalent. Looking prior to then, between 2011 and 2018, 85 percent of underage marriage requests resulted in authorization. According to reports from the ground, judges often issue these authorizations based on their assessment of a girl’s physical appearance and a determination that she is capable of assuming “marital responsibilities”; reasons provided by judges include saving family honor or preventing a woman from debauchery and at times, a judge does not provide a justification in writing.
The Moudawana removed the requirement that a legal guardian must provide approval for a woman’s marriage and instead gave the woman the authority to conclude her own marriage; Article 25 does, however, still allow a woman to delegate the power of concluding the marriage to her father or another relative. Although the Mouadawana did not abolish polygamy in an outright manner, it did place restrictions on the practice. The code obligates the husband to establish the necessity of the second marriage and requires judicial approval for the marriage to proceed, the process for which is laid out in Articles 40 to 46. Specifically, in Article 41, the code stipulates that a court will not authorize polygamy when “an exceptional and objective justification is not proven” or when the man does not “have sufficient resources to support the two families and guarantee all maintenance rights, accommodation and equality in all aspects of life.” It states that polygamy is forbidden when there is a risk of inequity between the wives. Article 40 of the code also allows women to include provisions in their marriage contracts which would prohibit their husbands from taking on second wives; however, an analysis of 75,173 marriage contracts found that only 87 of them included a monogamy clause preventing polygamy. Overall, polygamy is rare; official statistics for polygamy in 2020 indicated that there were about 658 polygamous marriages, which amounted to roughly 0.3 percent of all marriages at the time.
In matters of divorce, the 2004 code expanded the rights of women to seek a divorce; for example, it granted both men and women the right to divorce on the basis of irreconcilable differences. However, some inequalities remain: men can continue to divorce by repudiation unilaterally, whereas women must either pay compensation to their husbands to seek a divorce or establish one of six specified justifications.
On child custody following divorce, the code maintains legal guardianship with the father unless in cases of death, absence, or incapacity; this results in men retaining decision-making in a number of consequential contexts. Custody is itself awarded first to the mother, then to the father, then to the maternal grandmother. And when a child reaches 15 years old, Article 166 of the Moudawana grants them the authority to select which parent to serve as their custodian. When a woman remarries however, there is a risk that she may lose custody of her child. Article 175 of the code states that a woman will not lose custody upon remarrying so long as one of four conditions apply: (1) the child is seven years old or younger, or if separation from the mother would inflict harm on the child; (2) the child has an illness or handicap that makes caring for the child by anyone other than the mother impossible; (3) if the person she is marrying is the legal guardian of the child or is in a “degree of kinship relations” with the child; or (4) the mother is the legal guardian of the child.
The code establishes that children born out of wedlock are able to achieve legal recognition and that in cases of paternity disputes, scientific testing can be resorted to. With regards to inheritance, though the code established that a husband and wife could inherit from each other, very few other changes were made to the 1958 text, continuing to entrench provisions which have women inheriting much less than men in most cases.
Discrepancy in how the code has been applied by judges, depending on geographic location and socioeconomic background, still remains; some judges continue to rely on religiously conservative interpretations when applying the code
Beyond the text itself, a number of issues with regards to implementation have remained in practice. Awareness among women about the rights laid out in the Moudawana continues to be limited; this has been particularly of note in light of the high illiteracy rate and the prevalence of religiously-justified and at-times inflammatory language on the issues at the heart of the Moudawana. Discrepancy in how the code has been applied by judges, depending on geographic location and socioeconomic background, still remains; some judges continue to rely on religiously conservative interpretations when applying the code. Furthermore, fears regarding the creation of a parallel and lesser system of justice abound, particularly in light of the fact that a new specialized circuit of family courts was created alongside the adoption of the Moudawana.
As a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and a number of other relevant human rights instruments, Morocco should take steps to amend its Moudawana to bring it in line with its international legal obligations. Some recommendations that the United Nations Committee on the Elimination of Discrimination against Women has made to Morocco include amendments that would establish an absolute minimum marriage age, fully prohibit polygamy, and ensure equal rights for women in “matters relating to property acquired during marriage, divorce, child custody, and inheritance.” Moroccan authorities should additionally ensure that they are investing in areas like awareness-raising and training of judges to guarantee that the law can be implemented in a manner that advances the rights of women, children, and men alike. As discussions on the Moudawana across Morocco continue among everyday citizens and government officials, the upcoming months present a unique opportunity for the country to once again embark on a discussion that may very well result in some additional prospects for reform.
Mai El-Sadany is the Executive Director of the Tahrir Institute for Middle East Policy (TIMEP), and Bassel Jamali is the Legal and Policy Intern at TIMEP who is pursuing a JD and Master’s in Arab Studies at Georgetown University.
This analysis was originally published as a feature piece in Issue 2 of the Rule of Law Developments in the Middle East and North Africa newsletter, produced by Konrad-Adenauer-Stiftung Rule of Law Programme Middle East & North Africa and TIMEP.