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The Moroccan Family Code (Moudawana)
of February 5, 2004
This unofficial English translation of the 2004 Moroccan
Family Law (Moudawana) was prepared by a team of English and Arabic
speaking lawyers and a professional Arabic-English Moroccan translator
at the Global Rights head Office in Washington and their field
Office in Morocco. A literal translation was privileged rather than
attempts to clarify, explain or interpret the intention of the legislator.
We hope this translation will be useful to researchers, NGOs and public
authorities interested in family law and the rights of women in Morocco.
Translation copyright 2005 by Global Rights. | Word
version 
Preamble
General Provisions
Book 1: Of Marriage
Title 1: Of Engagement and Marriage
Title 2: Of Capacity and Tutelage in Marriage
Title 3: Of Marriage Impediments
Title 4: Of Violational Conditions in the Marriage Contract
and their Effects
Title 5: Of Marriage Categories and Provisions
Title 6: Of the Formalities and Administrative Measures
to Legalize a Marriage Contract
Book 2: Of the Dissolution of the Bonds
of Matrimony and its Effects
Title 1: General Provisions
Title 2: Of Death and Anullment
Title 3: Of Repudiation
Title 4: Of Divorce
Title 5: Of Divorce by Mutual Consent or Divorce in Exchange
for Compensation
Title 6: Of Divorce and Repudiation Categories
Title 7: Of the Effects of the Dissolution of the Marriage
Contract
Title 8: Of Divorce Certification Procedures and Content
Book 3: Of Birth and its Effects
Title 1: Of Filiation and Paternity
Title 2: Of Custody
Title 3: Of Financial Maintenance
Book 4: Of Legal Capacity and Representation
Title 1: Of Legal Capacity, Causes of Guardianship due
to Legal Incapacity (Al Hajr), and Acts of Disposal
Title 2: Of Legal Representation
Book 5: Of Wills [not translated]
Book 6: Of Inheritance [not translated]
Book 7: Of Interim and Final Provisions
Official Gazette General Provisions
Sherifyan Dahir (Royal Edict) n° 1.04.22 issued on 12 Dou Al Hijja
1424
(February 3, 2004) To Implement Law n° 70.03 as the Family Code
Praise Be to God,
The Sherifyan Seal - enclosed herewith:
(Mohamed Ibnou Al Hassan Ibnou Mohamed Ibnou Youssef,
May God be his Protector)
From our Sherifyan Dahir (Royal Edict), May God Glorify, we notify of:
On the basis of the Constitution, notably Chapters 26 and 58, We issued
our Sherifyan
Order with the following:
To be enforced and published in the Official Gazette,
our Sherifyan Dahir (Royal Edict), Law n° 70.03 as the Family Code,
as it has been approved by the House of Representatives and the Chamber
of Counselors.
Written in Rabat on 12 Dou Al Hijja 1424 (February 3,
2004) Affixed with countersignature by: The Prime Minister,
Signed: Driss Jettou
Preamble
Since acceding to the throne of his noble ancestors, His
Majesty King Mohamed VI, our Chief Commander of the Faithful, may God
protect him, has made the promotion of human rights a priority which
lies at the very heart of the modernist democratic social project of
which His Majesty is a leader. Doing justice to women, protecting children's
rights and preserving men's dignity are a fundamental part of this project,
which adheres to Islam's tolerant ends and objectives, notably justice,
equality, solidarity, ijtihad (juridical reasoning) and receptiveness
to the spirit of our modern era and the requirements of progress and
development.
Whereas the late King Mohamed V, may God rest him in peace,
upon Morocco's recovery of its sovereignty worked to establish a Personal
Status Code, which constituted then the first step in establishing the
rule of law and the unification of provisions in this regard; given
that the work of the late King Hassan II, may God enlighten his tomb,
was distinguished by the constitutional consecration of equality before
the law, with a priority given, may God glorify his soul, to an exceptional
attention to family issues, clearly manifested in all aspects of political,
institutional, economic, social and cultural life. As a result, Moroccan
women occupy more prominent positions that have enabled them to participate
actively in different areas of public life.
In the same vein, and following the right path of his
august grandfather and father, His Majesty King Mohamed VI, may God
glorify him - in order to illustrate his commitment to the policies
of local democracy and participation, respond to the legitimate expectations
of the Moroccan people, and further emphasize the shared will that unites
the entire nation with its leader on the path of comprehensive reform,
swift progress, and the strengthening of the Kingdom's civilizational
enlightenment - has insisted, may God protect him, on making the Moroccan
family - based upon shared responsibility, affection, equality, equity,
amicable social relations and proper upbringing of children - a substantial
major component of the democratization process, given that the family
constitutes the essential nucleus of society.
King Mohamed VI, may God glorify him, has, since acceding
to the throne and assuming the great responsibility of ruling over the
Believers, followed the path of wisdom and insight to realize such a
noble objective, and to this end appointed an advisory Royal Commission
constituted of the finest experts and religious scholars, men and women
from a diversity of profiles and fields, to conduct a fundamental review
of the Personal Status Code. His Majesty, may God cherish him, provided
the Commission with his constant enlightened guidance and advice in
order to prepare a new Family Code bill, and insisted upon their fidelity
to the provisions of Sharia (religious law) and Islamic principles of
tolerance, and encouraged the use of ijtihad (juridical reasoning) to
deduce laws and precepts, while taking into consideration the spirit
of our modern era and the imperatives of development, in accordance
with the Kingdom's commitment to internationally recognized human rights.
One of the results of this supreme royal attention was
the historic achievement of this pioneering Family Code, its provisions
drafted in a modern legal jurisprudential style, in conformity with
Islam's tolerant rules and exemplary purposes while providing balanced,
fair and pragmatic solutions resulting from enlightened open ijtihad
(juridical reasoning). This code further stipulates that human and citizenship
rights are accorded to all Moroccans, women and men equally, in respect
of the holy divine religious references.
The Parliament, with its two Houses, is proud of the wisdom,
insight, responsibility and realism that King Mohamed VI, may God glorify
him, has made predominant throughout the entire preparatory process
of this social human rights document, and proudly values the distinguished
historical transition that this Family Code represents, given that it
is a legal text constitutive of the modern democratic society.
The nation's representatives in the Parliament praise
the democratic initiative of his Majesty the King, who ordered the presentation
of the Family Code bill to the two Houses of Parliament for consideration,
because of the belief of His Majesty, the Commander of the Faithful
and sovereign representative of the nation, in the prominent role of
the Parliament in the democratic construction of a country of institutions.
The Parliament also gratefully praises the King's provision for specialized
Family Courts and a just, fit, modern and efficient system of family
justice. The Parliament further emphasizes the mobilization of all its
Members behind the Commander of the Faithful to provide all the means
and texts to permit the establishment of an integrated and harmonious
legislative apparatus, which will serve to consolidate the family and
enhance the joining of forces in society.
Given all of these considerations, the Parliament is proud
of the precious content and
enlightened guidance in His Majesty the King's historical speech upon
the opening of the second legislative year of the seventh term. Those
orientations will be adopted by the Parliament as the best preamble
for the Family Code, particularly what was included in the sovereign
Royal speech, as the King, may God support him said:
"In our sovereign instructions and guidance to the Commission,
and while giving our views on the Family Code bill, we adopted the following
fundamental reforms:
One: Adopt a modern form of wording and remove
degrading and debasing terms for women.
Place the family under the joint responsibility of both
spouses, given that 'women are men's sisters before the law' in keeping
with the words of my ancestor the Chosen Prophet Sidna Mohammed, Peace
Be Upon Him, as reported, 'Only an honourable person dignifies women,
and only a villainous one degrades them.'
Two: Entitle the woman who has come of age to tutelage
as a right, and she may exercise it according to her choice and interests,
on the basis of an interpretation of a holy verse stipulating that a
woman cannot be compelled to marry against her will: "…place
not difficulties in the way of their marrying their husbands, if it
is agreed between them in kindness.' A woman may of her own free will
delegate tutelage to her father or a male relative.
Three: Equality between women and men with respect
to the minimum age for marriage, which is now fixed at eighteen years
for both, in accordance with certain provisions of the Malekite School,
and authorize the judge to reduce this age only in justified cases,
and further, equality between girls and boys under custody who may choose
their custodian at the age of fifteen.
Four: Concerning polygamy, we took into consideration
the commitment to the tolerant principles of Islam in establishing justice,
which the Almighty requires for polygamy to take place, as it is plainly
stated in the Holy Koran: He said '...and if you fear that you cannot
do justice (to so many) then one (only).' And since the Almighty ruled
out the possibility for men to do justice in this particular case, He
said: 'You will not be able to deal equally between (your) wives, however
much you wish (to do so),' and he thus made polygamy quasi impossible
under Sharia (religious law).
We further adhered to the distinguished wisdom of Islam
in allowing men to legitimately take a second wife, but only under compelling
circumstances and stringent restrictions, with the judge's authorisation,
instead of illegitimate polygamy occurring if we prohibit it entirely.
From thence, polygamy shall be allowed only in the following
circumstances and according to the following legal conditions:
- The judge shall not authorize polygamy unless he has verified the
husband's ability to guarantee equality with the first wife and her children in all areas
of life, and there is an objective and exceptional motive that justifies polygamy.
- The woman has the right to stipulate a condition in the marriage contract
by which her husband will refrain from taking another wife, as Omar
Ibn Al-Khattab, may God be pleased with him, is quoted as saying: 'The
intersection of rights is in the conditions.' In the absence of such
a condition, the first wife is summoned to obtain her consent, and the
second wife must also be notified and consent to the fact that the husband
is already married to another woman. Moreover, the first wife has the
right to petition for divorce for harm suffered.
Five: As a token of our royal concern for our dear
subjects residing abroad, marriage procedures are to be simplified for them: the marriage contract is to
be drawn up in the presence of two Muslim witnesses and in accordance with the procedures
in effect in the country of residence, and then registered with the
proper Moroccan consular or judicial authorities, according to the Hadith:
'Seek ease, not hardship.'
Six: Make divorce, defined as the dissolution of
marriage, a prerogative that may be exercised as much by the husband
as by the wife, in accordance with legal conditions established for
each party and under judicial supervision to control and restrict the
abusive arbitrary practices of the husband in exercising repudiation,
and this according to the rules established on the basis of the Hadith
by Prophet Mohammed, Peace Be Upon Him, 'The most hateful to God among
all lawful things is divorce.' The new legislation also reinforces the
mechanisms for reconciliation and mediation both through the family
and the judge. If the husband has the right of repudiation, the wife
may also avail herself of this right through tamleek (assignation).
In all cases, before repudiation may be authorized it must be ascertained
that the repudiated woman has received all of her vested rights. A new
procedure for repudiation has been established that requires judicial
permission, and the repudiation can not be registered until all vested
rights owed to the wife and children have been paid in full by the husband.
Irregular pronouncements of repudiation by the husband shall not be
considered valid.
Seven: Expand the woman's right to file for divorce
when the husband does not fulfil any of the conditions stipulated in
the marriage contract, or for harm caused to the wife such as lack of
financial support, abandonment, violence, and other harm, in view of
endorsing the general legal principle: 'neither harm nor be harmed,'
to promote equality and equity between the two spouses. Another new
provision introduces of the right of divorce by mutual consent under
judicial supervision.
Eight: Protect children's rights by inserting provisions
of international conventions ratified by Morocco into the Moudawana.
Children's interests with respect to custody are also guaranteed by
awarding custody to the mother, then to the father, then to the maternal
grandmother. Should this prove impossible, the judge will entrust custody
to the most qualified relative. Furthermore, the child under custody
is guaranteed suitable accommodation, separate from the other financial maintenance obligations,
and cases concerning maintenance obligations must be settled swiftly within a
one-month time limit.
Nine: Protect the child's right to acknowledgement
of paternity in the event the marriage has not been officially registered
for reasons of force majeure, where the court examines the evidence
presented to prove filiation, and establish a five year time limit for
settling outstanding cases in this regard to put an end to the suffering
endured by children in this situation.
Ten: Allow the granddaughter and grandson on the
daughter's side the right to inherit from their grandfather, just as
the grandchildren on the son's side, in keeping with the principles
of ijtihad (juridical reasoning) and justice in the compulsory legacy.
Eleven: Concerning the management of property acquired
by the two spouses during marriage: while confirming the principle of separate marital property,
the bill makes it possible for the couple to agree, in a document separate from the marriage
contract, on a framework for managing assets acquired during marriage.
In case of disagreement, the judge shall resort to general rules of
evidence to assess each spouse's contribution to the development of
the family capital.
Ladies and gentlemen, honourable Members of Parliament,
The reforms, of which we cited the most important, should
not be considered as a victory of one group over another, but rather
constitute achievements for all Moroccans, and we took care to ensure
that they were consistent with the following principles and references:
- I cannot, as Commander of the Faithful, permit what God has forbidden
and forbid what God has permitted.
- Adopt the tolerant principles of Islam in advocating human dignity,
and enhancing justice, equality and good amicable social relations,
and with the cohesiveness of the Malekite School as well as ijtihad
(juridical reasoning), which makes Islam valid for any time and place,
to implement a modern Moudawana for the family, consistent with the
spirit of our glorious religion.
- Not consider the Moudawana as a law for the woman only, but a Moudawana
for the entire family - father, mother and children - and further ensure
that this Moudawana eliminates discrimination against women, protects
the rights of children and preserves men's dignity.
Would any one of you agree to throw his family, wife and
children out of the home into the street, or for his daughter or sister
to be treated unjustly? As the King of all Moroccans, we do not legislate
for specific groups or categories of people, rather we epitomize the general will of the nation, which we consider
as our extended family.
To protect the rights of our faithful subjects of Jewish
faith, we have emphasized in the new Family Code that they shall be
governed by the provisions of the Hebraic Moroccan Family Law.
Whereas the 1957 Moudawana was enacted before the creation
of the Parliament, and amended in 1993 during a transitional constitutional
period by virtue of Sherifyan Dahirs (Royal Edicts), we have esteemed
it perspicacious to present the Family Code bill to the Parliament for
the first time in view of its implications for civil law, noting that
its religious legal provisions fall within the competence of the Commander
of the Faithful.
We expect you to rise to this historical responsibility,
both through your respect of the sacredness of this bill's texts, inspired by the tolerant principles
of Sharia (religious law), and through your adoption of other texts.
These provisions should not be considered as exhaustive or approached
in a narrow-minded way, but rather should be approached realistically
and insightfully, because this constitutes an ijtihad (juridical reasoning)
effort suitable for contemporary Morocco and our openness to development
which we are determined to integrate wisely and progressively.
As the Commander of the Faithful, we will follow your
work in the light of the words of God, '…and consult with them
upon the conduct of affairs,' and 'And when thou art resolved, put thy
trust in Allah.' In order to ensure all conditions necessary for the
optimal enforcement of the Family Code, we addressed a Royal letter
to our Minister of Justice. In this letter, we explained that whatever
reforms the Moudawana may contain, its implementation hinges on the
creation of a fair, modern and effective family justice system - particularly
since it became clear from the application of the present Moudawana
that the inadequacies and flaws it contains are not simply due to its
clauses, but rather are the consequences of the absence of a qualified
family justice system in terms of logistics, human resources and procedures
- to fulfil all conditions of justice and equity, accelerate the resolution
of cases and promptly enforce judgements.
We further ordered him to accelerate the establishment
of suitable facilities for the administration of family justice within the different courts of the
Kingdom and the training of qualified personnel at different levels,
given the powers that this bill gives to the judiciary, in addition
to the necessity to accelerate the creation of a Family Solidarity Fund.
Furthermore, we ordered him to submit to us proposals
for the constitution of a committee of experts to draft a practical
guide containing different provisions, texts and procedures concerning
the family justice system for it to serve as its unified source of reference
and as the procedure for this Family Code, and efforts must also be
made to reduce the current Civil Procedure Code deadlines for the execution
of family affairs."
Law n° 70.03
Enacted as The Family Code
PRELIMINARY TITLE
General Provisions
Article 1
This law is entitled the Family Code and will be referred to thereafter
as the Moudawana.
Article 2
The articles of this Moudawana apply to:
1- All Moroccans, including those with another nationality,
2- Refugees, including stateless persons, by virtue of the Geneva Treaty
signed on July 28, 1951 relating to the status of refugees,
3- Relationships in which one of the parties is Moroccan,
4- Relationships between two Moroccans, one of whom is Muslim.
Moroccans of Jewish faith shall be governed by the provisions of the
Hebraic Moroccan Family Law.
Article 3
The Public Prosecutor's Office is an essential party to all legal actions
related to the
implementation of the provisions of this Moudawana.
[Back to Top]
BOOK ONE: OF MARRIAGE
Title One: Of Engagement and Marriage
Article 4
Marriage is a legal contract by which a man and a woman mutually consent
to unite in a common and enduring conjugal life. Its purpose is fidelity,
virtue and the creation of a stable family, under the supervision of
both spouses according to the provisions of this Moudawana.
Chapter I: Of Engagement
Article 5
Engagement is the reciprocal promise of marriage between a man and a
woman.
Engagement takes place through the expression by the two parties of
a reciprocal promise to marry by any accepted means, including the reading
of the Sura of Al Fatiha from the Holy Koran and the customary exchange
of presents.
Article 6
The two parties are considered to be in an engagement period until the
marriage is officially registered. Each party has the right to break
off the engagement.
Article 7
No compensation is due for breaking off the engagement. However, if
one of the parties causes any harm to the other, the injured party may
ask for compensation from the other.
Article 8
Either party may recover the presents he or she offered to the other
provided that the breaking off of the engagement was not his or her
decision. Presents are returned in the state in which they were initially
offered or reimbursed according to their value, depending on the circumstances.
Article 9
If the engaged man pays the dowry or part of it and the engagement is
broken off, or if one of the parties dies during the engagement period,
he or his inheritors recovers what the latter initially offered in its
original state, something comparable, or something of equivalent value.
If the engaged woman refuses to reimburse the money with which she bought
furniture, the person responsible for breaking off the engagement assumes
the loss between the value of the furniture and the amount of money
initially paid.
Chapter II: Of Marriage
Article 10
1. Marriage is legally concluded by an offer expressed by one of the
parties and acceptance by the other, in any accepted expression from
which the meaning of marriage is inferred verbally or conventionally.
2. Persons unable to speak may legally write
their consent if they are literate, and if they cannot write, any clear
sign understood by the other party and the witnesses is legally sufficient.
Article 11
To be valid, the offer and acceptance must be:
1- expressed verbally whenever possible; otherwise, they must be written;
or else expressed by means of an unequivocal sign;
2- congruent and concurrent;
3- irrevocable and not restricted by a condition or a suspensive or
nullifying deadline.
Article 12
Any marriage contract concluded under duress or by fraud is subject
to the provisions of Articles 63 and 66 below.
Article 13
The conditions required to contract marriage are:
1- The legal capacity of both spouses to marry;
2- No intention or agreement to cancel the dowry;
3- A marital tutor, if required;
4- The hearing and notarized statement by two adouls (public notaries)
of the offer and acceptance pronounced by the two spouses;
5- The absence of any legal impediments.
Article 14
Moroccans living abroad may conclude their marriage according to the
local administrative procedures of their country of residence, provided
that the conditions of consent, capacity, and the marital tutor if required
are all fulfilled, and that there are no legal impediments to the marriage
nor cancellation of the dowry; and this in the presence of two Muslim
witnesses and subject to the provisions of Article 21 below.
Article 15
Moroccans who have concluded their marriage according to the laws of
their country of residence must submit a copy of the marriage contract
within three months of its conclusion to the Moroccan consular section
of the consular district where the marriage contract was concluded.
In the absence of a Moroccan Consulate, the copy must be sent within
the same deadline to the appropriate department at the Ministry of Foreign
Affairs.
The appropriate department at the Ministry of Foreign Affairs will transmit
this copy to the Civil Status Officer and to the Family Court at the
birthplaces of both spouses.
If both or one of the spouses was not born in Morocco, the copy will
be transmitted to the Family Court in Rabat and to the Attorney General's
Office at the Court of First Instance in Rabat.
Article 16
A marriage contract is the accepted legal proof of marriage.
If for reasons of force majeure the marriage contract was not officially
registered in due time, the court may take into consideration all legal
evidence and expertise;
During its enquiry the court shall take into consideration the existence
of children or a pregnancy from the conjugal relationship, and whether
the petition was brought during the couple's lifetimes;
Petitions for recognition of a marriage are admissible within an interim
period not to exceed five years from the date this law goes into effect.
Article 17
The marriage contract is concluded in the presence of the parties. However,
delegation to a proxy is possible with the authorization of the Family
Affairs Judge in charge of marriage under the following conditions:
1- Special circumstances that prevent the delegating party to be personally
present to conclude the marriage contract;
2- A delegation for the marriage contract drawn up by a notary or public
authority, or a private contract with the notarized signature of the
delegating party;
3- The proxy must have reached the age of legal majority, enjoy full
civil capacity,
and fulfil the conditions of tutelage if designated by the marital tutor;
4- The delegating party must indicate in the delegation the name of
the other spouse, his/her personal information, and all other information
that she or he judges useful to include;
5- The delegation must include the amount of the dowry payable in advance
or in the future. The delegating party must also specify the conditions
that she or he wants to stipulate in the marriage contract and the conditions
that she or he is willing to accept from the other party;
6- The delegation must be certified by the judge once he verifies that
it meets all of the required conditions.
Article 18
A judge may not validate the marriage of a person under his tutelage
to himself or to any of his ascendants or descendants.
[Back to
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Title Two: Of Capacity, Tutelage and the Dowry
Chapter I: Of Capacity and Tutelage in Marriage
Article 19
Men and women acquire the capacity to marry when they are of sound mind
and have completed eighteen full Gregorian years of age.
Article 20
The Family Affairs Judge in charge of marriage may authorize the marriage
of a girl or boy below the legal age of marriage as stipulated in preceding
Article 19, in a well-substantiated decision explaining the interest
and reasons justifying the marriage, after having heard the parents
of the minor who has not yet reached the age of capacity or his/her
legal tutor, with the assistance of medical expertise or after having
conducted a social enquiry.
The decree granting the petition to marry
for a minor who has not reached the age of legal capacity for marriage
is not open to appeal.
Article 21
The marriage of a minor is contingent on the consent of his/her legal
tutor.
The legal tutor's consent is expressed by signing, along with the minor,
the marriage
authorization petition and being present during the conclusion of the
marriage contract.
If the minor's legal tutor refuses to consent, the Family Affairs Judge
rules on the matter.
Article 22
The two spouses acquire, pursuant to preceding Article 20, the civil
capacity to bring suit on matters pertaining to the rights and obligations
created by the marriage contract.
The court may, upon request from one of the spouses or his/her legal
tutor, determine the financial obligations of the husband in question
as well as payment methods.
Article 23
The Family Affairs Judge in charge of marriage may authorize the marriage
of a mentally disabled person after presentation by one or several medical
experts of a report on the state of the person's disability.
The judge informs the other party of the
findings and officially records the notice.
The other party must be of legal majority and explicitly consent in
an official record to marrying a disabled person.
Article 24
Marital tutelage is the woman's right, which she exercises upon reaching
majority according to her choice and interests.
Article 25
The woman of legal majority may conclude her marriage contract herself
or delegate this power to her father or one of her relatives.
Chapter II: Of the Dowry
Article 26
The dowry is that which the husband gives to his wife as an expression
of his desire to marry her and to build a stable family based on affection
and good amicable relations between husband and wife. Its legitimacy
is based on its moral and symbolic value rather than its material value.
Article 27
The dowry amount is specified upon the conclusion of the marriage contract,
and in the event it is not specified, the marriage is deemed one of
"entrustment."
If the husband and wife do not agree on the
amount of dowry during the marriage of
"entrustment", the court shall determine its amount by taking
into consideration the social background of both the husband and wife.
Article 28
Anything that constitutes a source of legal commitment can serve as
a dowry, and the dowry should be modest.
Article 29
The dowry is the woman's property to use as she wishes, and the husband
has no right to ask her for furniture or anything else in exchange for
the dowry he gave her.
Article 30
The husband and wife may agree on the immediate or deferred payment
of the dowry within a fixed deadline, be it for the entire amount or
for part of it.
Article 31
The dowry is paid on the fixed deadline. The wife may ask for the payment
of the dowry before starting conjugal life. When conjugal life commences
before payment of the dowry, it becomes a debt on the husband.
Article 32
The wife's right to the totality of the dowry vests with the consummation
of the marriage or if she dies before the husband does. She has the
right to half of the dowry if divorce occurs before the marriage is
consummated. She has no right to the dowry before the marriage is consummated:
1- When the marriage contract is nullified;
2- When the marriage contract is rejected because of a defect in the
wife or because of a defect in the husband;
3- When divorce occurs in a marriage of "entrustment."
Article 33
When the payment of the dowry before the marriage is consummated is
in dispute, the wife's declaration takes precedence over the husband's.
When the payment of the deferred dowry is in dispute, the husband must
prove that he has paid it. The dowry is not subject to prescription.
Article 34
All possessions the wife brings with her to the marriage including furniture
and
accompanying items are her property. When disputes arise concerning
the remaining household furnishings, the matter is decided according
to general rules of evidence.
However, if neither the husband nor the wife presents any evidence,
the husband under oath claims those effects that men habitually use
and the wife under oath claims those effects that women habitually use.
Objects commonly used by men and women will be, upon the sworn word
of both of the spouses, shared between them when neither of them renounces
his or her oath.
[Back to
Top]
Title Three: Of Marriage Impediments
Article 35
There are two categories of marriage impediments: permanent and temporary.
Chapter I: Of Permanent Impediments
Article 36
Prohibited degrees of blood kinship relations, including a man's ancestors,
ascendants, and descendants.
Article 37
Forbidden degrees of kinship by marriage, including the wives' ascendants
at the moment the marriage contract is concluded and their descendants
if the marriage has been consummated with the mother, as well as the
lineal paternal wives and the direct filial wives at the time of the
marriage contract's conclusion.
Article 38
Impediments to marriage resulting from kinship by breastfeeding are
the same as those prohibited through blood kinship and kinship by marriage.
Only the breastfed child - not his or her brothers and sisters - is
considered the child of the woman who breastfeeds him or her and of
her husband.
Breastfeeding is only an impediment to marriage
if it occurred during the first two years of the child's life.
Chapter II: Of the Temporary Impediments
Article 39
The temporary impediments to marriage are:
1- Marriage simultaneously to two sisters or to a woman and her paternal
or maternal aunt, be the relation one of blood kinship or breastfeeding;
2- Marriage to more than the legally authorized number of wives;
3- After three successive repudiations, unless the wife's iddat (or
legal waiting period) has expired following the lawful conclusion and
consummation of a marriage to another man. The remarriage of the thrice
repudiated woman to another man annuls the three previous repudiations
pronounced by the first repudiating husband. The resumption of marriage
with this husband renews his right to repudiate her anew three times.
4- The marriage of a Muslim woman to a non-Muslim man, and the marriage
of a Muslim man to a non-Muslim woman unless she is of the Christian
or Jewish faith;
5- A married woman or a woman who is observing the iddat (legal waiting
period).
Article 40
Polygamy is forbidden when there is the risk of inequity between the
wives. It is also
forbidden when the wife stipulates in the marriage contract that her
husband will not take another wife.
Article 41
The court will not authorize polygamy:
- If an exceptional and objective justification is not proven.
- If 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.
Article 42
In the absence of a stipulation by the wife in the marriage contract
precluding polygamy, the husband wishing to resort to it must petition
the court for authorization.
The authorization petition should include the exceptional and objective
motives that justify the request, and attach a statement on the applicant's
financial situation.
Article 43
The court summons the wife whose husband wishes to take another wife.
When she
personally receives the summons and does not appear in court, or refuses
to accept the summons, the court sends her a formal notice by a process
server instructing her that if she does not appear at the hearing scheduled
in the notice, the husband's petition will be decided in her absence.
The petition is also decided in the wife's
absence when it is impossible for the Public
Prosecutor Office to ascertain her permanent address or place of residence
where the
summons may be delivered.
When the wife does not receive the summons
due to the mala fide transmission of a false address by the husband
or the falsification of the wife's name, the husband incurs, upon request
by the prejudiced wife, the penalties provided for in Article 361 of
the Penal Code.
Article 44
The hearing takes place in the consultation room in the presence of
both parties, and both are heard in order to reach agreement and reconcile
them after an examination of the facts and the presentation of the requested
justifications.
The court may authorize polygamy in a well-founded
decision not open to appeal once it establishes the existence of an
objective and exceptional justification and puts into place conditions
benefiting the first wife and her children.
Article 45
When the court confirms in the discussions that continuation of the
conjugal relationship is impossible, and where the wife whose husband
wants to take another wife persists in her request for a divorce, the
court determines a sum of money corresponding to the first wife's full
rights as well as those of their children that he is required to support.
The husband must pay the fixed sum of money within a maximum time limit
of seven days. Upon submission of the requisite sum of money, the court
issues the divorce decree. This decision is not open to appeal as concerns
the dissolution of the marital relationship.
The non submission of the requisite sum of
money within the fixed deadline is considered as a withdrawal of the
polygamy authorization petition.If the husband persists in his polygamy
authorization petition, and the wife to whom he wishes to join a co-wife
refuses to consent and does not ask for divorce, the court automatically
applies the irreconcilable differences procedure in Articles 94 and
97 below.
Article 46
If the polygamy authorisation petition is granted, the marriage with
the future wife cannot be concluded until the judge has informed her
that the applicant husband is already married and she has consented
to this.
This notice and consent are recorded in an
official report.
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Title Four: Of Volitional Conditions in the Marriage
Contract and their Effects
Article 47
All conditions are binding except for those contrary to the terms and
objectives of marriage and to compulsory legal rules; such conditions
are void while the contract remains valid.
Article 48
Conditions that confer a legitimate benefit on the person who drew them
up are valid and binding on the spouse who agreed to them. If facts
or circumstances render the material performance of a condition difficult,
the person bound by it may ask the court for a waiver or a modification
of the condition, for as long as these facts or circumstances exist,
taking into consideration the provisions of preceding Article 40.
Article 49
Each of the two spouses has an estate separate from the other. However,
the two spouses may, under the framework of the management of assets
to be acquired during the marriage, agree on their investment and distribution.
This agreement is indicated in a written
document separate from the marriage contract.
The Adouls (public notaries) inform the two parties of these provisions
at the time of the marriage.
In the absence of such an agreement, recourse
is made to general standards of evidence, while taking into consideration
the work of each spouse, the efforts made as well as the responsibilities
assumed in the development of the family assets.
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Title Five: Of Marriage Categories and Provisions
Chapter I: Of the Valid Marriage and its Effects
Article 50
When the marriage contract meets all legal requirements, and there are
no impediments to the marriage, the marriage is considered a valid one,
and leads to the full implication of rights and duties that the Sharia
(religious law) establishes between the husband and wife, children and
relatives as stated in this Moudawana.
Section 1: Of the Husband and Wife
Article 51
The mutual rights and duties between spouses are:
1- lawful cohabitation on the basis of good conjugal relations, justice,
equality in case of polygamy, mutual fidelity, virtue, and the preservation
of family honour and their children;
2- cohabitation, mutual respect, affection, and the preservation of
the family interests;
3- the wife's assuming with the husband the responsibility of managing
and protecting
household affairs and the children's education;
4- consultation on decisions concerning the management of family affairs,
children, and family planning;
5- good relations with each other's parents and close relatives, respecting,
visiting and hosting them within accepted standards;
6- the right to inherit from each other.
Article 52
When either spouse continually fails to fulfil his or her obligations
in marriage, as specified in the preceding article, the other party
may compel the spouse to execute the obligation or resort to the irreconcilable
differences procedure provided for in Articles 94, 95, 96 and 97 below.
Article 53
When either spouse evicts the other from the marital home without justification,
the Public Prosecutor shall intervene to return the evicted person to
the house immediately and shall take all necessary measures to guarantee
his or her safety and protection.
Section 2: Of Children
Article 54
Children have the right to the following care from their parents:
1- Protection of their lives and health from conception until they come
of legal age;
2- Ensuring respect of their identity and its preservation, particularly
their name,
nationality and registration in the civil status record;
3- Paternity, custodial care and financial maintenance in conformity
with the provisions of the third book of this Moudawana;
4- Breastfeeding by the mother whenever possible;
5- All possible measures that guarantee the children's natural development,
with the
protection of their physical and psychological integrity, and care for
their health
through both prevention and treatment;
6- Religious guidance, proper education on sound noble principles of
honesty in
statements and actions, prevention of violence against children that
leads to physical
and psychological harm, and protection from any exploitation that might
harm their
interests;
7- Providing them with education and training that will enable them
to integrate
professional life and become useful citizens in society. To the extent
possible, parents
must provide adequate circumstances for their children to pursue their
studies
according to their physical and intellectual capacities.
In the event of divorce between the spouses, these duties are distributed
between the spouses according to the custody provisions.
In the event of the death of one or both
spouses, these duties are incumbent upon the custodian and the legal
tutor, according to their respective responsibilities.
The disabled child enjoys, in addition to the abovementioned rights,
the right to special care for his condition, particularly adequate education
and rehabilitation appropriate for his disability in order to facilitate
his integration into society.
The State is responsible for taking the necessary
adequate measures to protect children, and for guaranteeing and protecting
their rights according to the law.
The Public Prosecutor's Office shall monitor the application of the
preceding provisions.
Section 3: Of Relatives
Article 55
The marriage contract has effects that extend to each spouse's relatives,
including marriage impediments due to kinship by marriage, breastfeeding,
and affiliation.
Chapter II: Of the Invalid Marriage and its Effects
Article 56
The invalid marriage is either null and void or defective.
Section 1: Of the Null and Void Marriage
Article 57
The marriage is null and void when:
1- One of the fundamental conditions cited in Article 10 is not fulfilled;
2- If one of the marriage impediments cited in preceding Articles 35
to 39 exists between the spouses;
3- Absence of congruence between the offer and the acceptance.
Article 58
The court shall declare such a marriage invalid in accordance with the
provisions of preceding Article 57 the moment it gains knowledge of
it, or upon the request of the concerned party.
After consummation, this marriage results
in payment of the dowry, and when good intentions are present it also
results in the acknowledgement of paternity as well as the impediments
that result from the marriage.
Section 2: Of the Defective Marriage
Article 59
The marriage is defective if one of the conditions for its validity
is not fulfilled, in accordance with Articles 60 and 61 below. Some
of these marriages are annulled before they are consummated and validated
after consummation, while other marriages are annulled before and after
consummation.
Article 60
The defective marriage is annulled before it is consummated and does
not result in a dowry when the dowry does not meet the legal conditions.
The marriage may be validated after it has been consummated by a dowry
established by the court in consideration of the social status of both
spouses.
Article 61
The marriage that is defective because of the contract is annulled before
and after
consummation in the following cases:
- If the marriage was concluded when either spouse had a serious contagious
disease, unless the sick person was cured after the marriage;
- When the husband contracts the marriage in order to permit a woman
who has been
repudiated three times to remarry her former husband;
- When the marriage took place without the presence of the marital tutor
when his presence is required;
- Repudiation and divorce in the preceding cases are valid if pronounced
before the
annulment decree.
Article 62
If the offer and acceptance are constrained by a deadline or a suspensive
or nullifying
condition, the provisions of preceding Article 47 apply.
Article 63
Either spouse who was placed under duress or deceived by fraud with
the intent to induce him or her to agree to the marriage, or by facts
expressly stipulated as a condition in the contract, can petition for
the annulment of the marriage before or after consummation within a
period not to exceed two months from the date when the duress was lifted,
or she or he discovered the fraud. She or he has the right to demand
compensation.
Article 64
The marriage which is annulled by virtue of preceding Articles 60 and
61 has no effects before consummation, but after it consummation it
has the same effects as a valid marriage contract until the annulment
decree is rendered.
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Title Six: Of the Formalities and Administrative
Measures to Legalize a Marriage Contract
Article 65
I. A marriage contract record is created and maintained at the Court
Clerk's office at the Family Court where the marriage is to be concluded,
and it shall include the following documents:
1- An application form requesting registration of the marriage contract.
Its form and
content shall be specified in a decree by the Minister of Justice;
2- A copy of the birth certificate. The civil status officer shall mention
in the margins of this copy its date of issuance, specifying that it
was issued for the purpose of marriage;
3- An administrative certificate for both of the engaged parties, whose
content shall be defined in a joint decree by the Ministers of Justice
and Interior;
4- A medical certificate for each of the two engaged parties, whose
content and
procedures for issuing shall be defined in a joint decree by the Ministers
of Justice and Health;
5- A marriage authorization is also required in the following cases:
- Marriage of persons not yet of legal age;
- Polygamy when the conditions required by this Moudawana are fulfilled;
- The marriage of a mentally disabled person;
- The marriage of persons who have converted to Islam and foreigners.
6- A certificate of capacity to marry or its equivalent for foreigners.
II. The Family Affairs Judge in charge of
marriage records officially certifies the record containing the abovementioned
documents, and files it at the Court Clerk's office under its assigned
number.
III: The Family Affairs Judge authorizes
the two adouls (public notaries) to draw up the marriage contract.
IV: The two adouls note in the marriage contract
the declaration by both spouses specifying whether or not they have
been married previously. In case of a previous marriage, the declaration
must be accompanied by proof of the legality
of the marriage to be concluded.
Article 66
If a person employs fraud to obtain the authorization or the certificate
of capacity mentioned in Clauses 5 and 6 of the preceding Article or
to evade them, the dispositions of Article 366 of the Penal Code will
be applied to the author and his accomplices upon request by the injured
party. The injured party has the right to ask for the annulment of the
marriage with compensation.
Article 67
The marriage contract shall contain the following:
1- Mention of the judge's authorization, its number, its date of issuance,
and the number of the marriage document record as well as the court
where it was filed;
2- The family names, first names, country or place of residence, place
of birth and age, national identity card number or its equivalent, and
nationality of both spouses;
3- The name of the marital tutor if required;
4- The offer and acceptance by the two contracting parties who exercise
full capacity and the ability to choose and discern;
5- In the case of marriage by proxy, the name and national identity
card number of the
representative, and the date and place of issuance of the marriage delegation;
6- Mention of the legal status of the spouse who has been married previously;
7- The amount of the dowry in cases where it has been specified, denoting
any amount paid in advance or to be paid in future instalment(s), and
whether it has been paid in front of witnesses or if there is mere acknowledgement;
8- Conditions agreed upon by both parties;
9- The signatures of both spouses and the tutor when required;
10- The names of the two adouls (public notaries) and each one's signature
with the date of the marriage contract;
11-The authentication of the marriage contract by the judge affixed
with his seal.
The list of documents required to constitute the marriage record as
well as their content may be modified or completed by ministerial decree.
Article 68
The contract is registered at the Family Court records. A summary of
it is transmitted to the Civil Status office at the birthplaces of both
spouses, accompanied by a return receipt within fifteen days after the
judge has authenticated it.
If one or both spouses were not born in Morocco,
the marriage contract summary is
transmitted to the Office of the Attorney General at the Court of First
Instance in Rabat. The civil status officer records the information
from this summary in the margins of the copy of the birth certificates
of both spouses.
The format, content and information recorded
as cited in the first paragraph above shall be determined in a decree
by the Minister of Justice.
Article 69
The original marriage contract is remitted to the wife and a copy provided
to the husband once the judge authenticates it.
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BOOK TWO: OF THE
DISSOLUTION OF THE BONDS OF MATRIMONY AND ITS EFFECTS
Title One: General
Provisions
Article 70
No one should resort to the dissolution of the bonds of matrimony through
repudiation or divorce except in exceptional circumstances, considering
the rule of the least harm, given the family dislocation and harmful
effects on children.
Article 71
Marriage is dissolved by death, annulment, divorce, repudiation or khol'
(divorce in exchange for compensation by the wife).
Article 72
Dissolution of a marriage produces the effects cited in this Moudawana
from the date of the:
1- Death of either spouse, or the issuance of a judgement declaring
him or her deceased;
2- Annulment, repudiation, divorce, or khol' (divorce in exchange for
compensation by the wife).
Article 73
Divorce must be expressed by explicitly spoken words and in writing,
and for those incapable of both, an unequivocal sign from which divorce
is inferred.
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Title Two: Of Death and Anullment
Chapter I: Of Death
Article 74
Death and its date are established before the court by all accepted
means.
The court shall declare a disappeared person deceased according to Articles
327 and
following.
Article 75
If a disappeared person who has been pronounced deceased by the court
turns out to be alive, the Public Prosecutor's Office or the concerned
person shall petition the court to issue a decision declaring that he
or she is still alive.
The court's decision declaring the person still alive nullifies the
previous judgement
pronouncing the person deceased and annuls all of its effects, with
the exception of the remarriage of the disappeared person's wife, which
remains valid if consummated.
Article 76
In the event the real date of death is proven and turns out to be different
from the one issued by the court, the Public Prosecutor's Office as
well as all concerned parties should petition for the issuing of a judgement
proving that fact, and this nullifies the effects related to the wrong
date of death, except for the remarriage of the wife.
Chapter II: Of Annulment
Article 77
The annulment of the marriage contract before or after the marriage
is consummated is
decreed in certain cases and according to the conditions set out in
this Moudawana.
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Title Three: Of Repudiation
Article 78
Repudiation is the dissolution of the bonds of matrimony exercised by
the husband and wife, each according to his or her respective conditions,
under judicial supervision and according to the provisions of this Moudawana.
Article 79
Whoever wishes to repudiate must petition the court for authorization
to certify the
repudiation by two adouls (public notaries) accredited for this purpose
in the judicial district of the conjugal domicile, the wife's domicile
or place of residence, or the place where the marriage contract was
issued, in that order
Article 80
The petition for authorization to certify a repudiation contains the
identity of both spouses, their professions, their address(es), and
the number of children if any, their ages, and their state of health
and educational status.
The petition must be accompanied by the marriage
record and evidence of the husband's material situation and financial
obligations.
Article 81
The court shall subpoena the two spouses for a reconciliation attempt.
If the husband personally receives the summons and does not appear,
this is considered a withdrawal of his petition.
If the wife personally receives the summons,
and neither appears nor submits a written response, the court notifies
her through the Public Prosecutor that if she does not appear, the case
will be decided in her absence.
When the wife's address is unknown, the court,
with the assistance of the Public Prosecutor, determines the facts,
and if it is established that the husband provided false statements,
upon the wife's request he shall incur the penalties provided for by
Article 361 of the Penal Code.
Article 82
When the two spouses appear, the discussions take place in the consultation
room, including the hearing of witnesses and any other person the court
deems useful to hear.
The court may take all necessary measures, including the appointment
of two arbitrators, a family council or whomever it deems qualified
to reconcile the couple. In the existence of children, the court undertakes
two reconciliation attempts separated by a minimum of 30 days.
If the attempts to reconcile the spouses
succeed, an official report is written and filed at the court.
Article 83
If the attempts to reconcile the spouses fail, the court shall fix a
sum of money that the husband must deposit at the court within a maximum
delay of thirty days to discharge all vested rights due to the wife
and dependent children as provided for by the two following articles.
Article 84
The amount due to the wife includes: the delayed dowry if appropriate,
maintenance for the iddat (legal waiting period) and the Consolation
Gift, which is assessed based on the length of the marriage, the financial
means of the husband, the reasons for the repudiation, and the degree
to which the husband has abused this right.
During the iddat period the wife remains in the conjugal home, or, if
need be, in a suitable home based on her and the husband's financial
situation. Failing this, the court shall fix an amount of money to cover
housing expenses to be deposited with the court as part of the vested
rights due to the wife.
Article 85
The amount of vested rights due to dependent children is determined
according to Articles 168 and 190 below, taking into consideration their
standard of living and educational situation prior to the divorce.
Article 86
If the husband does not deposit the amount of money provided for in
preceding Article 83 within the fixed deadline, this is considered as
a renunciation of his intention to repudiate, and the court certifies
this.
Article 87
As soon as the husband deposits the required sum of money, the court
authorizes him to register the repudiation with the two adouls (public
notaries) in the same district as the court.
As soon as the judge has affixed his seal
to the repudiation decree, a copy is transmitted to the court that issued
the repudiation authorization.
Article 88
After the court receives the copy indicated in the preceding article,
it shall issue a wellsubstantiated decision that includes:
1- The names, dates and places of birth and of the marriage, and domicile(s)
or place(s) of residence of the two spouses;
2- A summary of the two parties' claims and their requests, the evidence
and arguments they presented, the procedures already undertaken, and
the Public Prosecutor's conclusions;
3- The date of the authentication of the repudiation;
4- Whether the wife is pregnant or not;
5- The names of their children, their ages, the name(s) of their custodian(s),
and the
organization of visitation rights;
6- Specification of the amount due as cited in preceding Articles 84
and 86, and the salary due to the child custodian after the iddat (legal
waiting period).
The court's decision is open to appeal according to the usual procedures.
Article 89
If the husband has assigned his right of repudiation to his wife, she
can exercise this right by petitioning the court according to the provisions
of preceding Articles 79 and 80. The court shall verify that the conditions
for the assignation of the right of repudiation as agreed upon by the
two spouses are fulfilled, and attempt reconciliation according to the
provisions of preceding Articles 81 and 82.
If the reconciliation attempt fails, the
court shall authorize the wife to petition for the
certification of the repudiation and rule on her vested rights, and
if appropriate, those of her children, in accordance with preceding
Articles 84 and 85.
The husband cannot prevent his wife from exercising the right of repudiation
that he has previously assigned to her.
Article 90
The repudiation authorization petition is not accepted from an inebriated
person, a person who has been forced to do so, or an irate person.
Article 91
Vows and pledges do not result in repudiation.
Article 92
Multiple expressions of repudiation pronounced verbally, with a symbolic
gesture or in writing result in only one repudiation.
Article 93
Repudiation made conditional on doing something or abstaining from something
has no
effect.
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Title Four: Of Divorce
Chapter I: Of Divorce Sought by Either
Spouse for Irreconcilable Differences
Article 94
If either or both spouses ask the court to settle a dispute that risks
to breakdown their marriage, the court must make all efforts to reconcile
them according to the provisions of preceding Article 82.
Article 95
The two arbitrators or two persons that can assume this role shall investigate
the causes of the dispute between the spouses and do their best to resolve
the conflict.
If the two arbitrators reconcile the two spouses, they shall write a
report, make three copies of it, signed by them as well as the spouses,
and submit the three copies to the court, which remits a copy to each
spouse and files one in the record, and certifies it.
Article 96
When the two arbitrators disagree on the content of the report or in
the attribution of
responsibility, or do not submit the report within the requisite deadline,
the court may conduct an additional investigation by all means it judges
appropriate.
Article 97
In the event reconciliation is impossible to reach, and the conflict
between the spouses persists, the court shall make written mention of
this in an official report of the proceedings, and grant the divorce
as well as fix the vested rights to be paid according to preceding Articles
83, 84 and 85, taking into account each spouse's responsibility for
the cause of the separation when considering measures it will order
the responsible party to take in favour of the other spouse.
The irreconcilable differences suit shall
be settled within a deadline not to exceed six months from the date
the petition was filed.
Chapter Two: Of Divorce for Other Causes
Article 98
The wife may petition for divorce on one of the following grounds:
1- Non respect by the husband of one of the conditions in the marriage
contract;
2- Harm;
3- Non maintenance;
4- Absence;
5- Latent defect;
6- Abstinence and abandonment.
Section 1: Of Non Respect of One of the Conditions in the Marriage
Contract or Harm
Article 99
Failure to respect any condition in the marriage contract constitutes
a harm justifying a divorce request. Any ignominious behaviour by the
husband or act against good character that causes the wife material
or moral harm such that the continuance of the conjugal relationship
is rendered unendurable shall be considered a harm justifying a divorce
request.
Article 100
The harm suffered is established by all means of proof, including the
testimony of witnesses, who are heard by the court in the consultation
room.
If the wife does not prove the harm and maintains her request for divorce,
she may resort to the irreconcilable differences procedure.
Article 101
In the event the court grants divorce on the grounds of harm, the court
may fix in the same judgement the amount of compensation due for the
harm.
Section 2: Of Non Maintenance
Article 102
The wife may petition for divorce on the grounds of non respect by the
husband of his current maintenance obligations towards her, in accordance
with the following situations and provisions:
1- If the husband has assets from which to award maintenance, the court
may fix the means for paying the wife maintenance, and does not grant
her petition for divorce.
2- In the event the husband proves his incapacity, the court shall fix,
according to the circumstances, a deadline for the husband not to exceed
thirty days to provide maintenance to his wife, under penalty of divorce,
except in cases of force majeure or exceptional circumstances.
3- The court shall grant the wife's petition for divorce immediately
if the husband refuses to provide maintenance and does not prove his
financial incapacity.
Article 103
The same provisions shall be applied to the absent husband whose address
of residence is known and who receives notice of the petition.
If the absent husband's address of residence is unknown, the court shall
confirm this with assistance of the Public Prosecutor's Office, verify
the validity of the request, and proceed to settle the case in light
of the results of the investigation and the supporting documents.
Section 3: Of Absence
Article 104
If the husband is absent from the conjugal home for more than one year,
the wife may petition for divorce. The court shall verify the absence,
its length, and his location by all means. If the husband's absence
is established and his address of residence is known, the court shall
inform him about the petition by formal notice to allow him to respond,
and grant the divorce if he does not appear to cohabitate with his wife
or if he does not bring her to live with him.
Article 105
If the absent husband's address is unknown, the court, with the help
of the Public Prosecutor's Office, shall take all appropriate measures
to notify him of the wife's petition, including the appointment of a
proxy. If he does not appear, the court shall grant the divorce.
Article 106
If the husband has been sentenced to imprisonment or detention for more
than three years, the wife may petition for divorce after a year of
his detention, and in all cases she may petition for divorce two years
after his detention.
Section 4: Of The Latent Defect
Article 107
Defects that are considered as impacting the stability of conjugal life
and that justify its dissolution are:
1- Any defect that prevents intimate conjugal relations;
2- Diseases that will endanger the life or the health of the other spouse
and cannot be cured within one year.
Article 108
The petition filed by one of the spouses for divorce on the basis of
a latent defect is subject to the following conditions:
1- The petitioner must not have known about the defect at the time the
marriage contract was concluded;
2- The petitioner must not have behaved in a way that would imply his
or her consent to the latent defect once she or he had knowledge of
its incurable nature.
Article 109
No dowry is paid in the case of divorce on the grounds of a latent defect
granted by the court before the marriage is consummated, and if the
marriage has been consummated, the husband has the right to seek reimbursement
of the dowry from a spouse who misled him or knowingly hid a latent
defect.
Article 110
When the husband is aware of the defect before the marriage contract
is concluded, and divorces before the marriage is consummated, half
of the dowry must be paid.
Article 111
Recourse is made to specialized experts to help identify the defect
or disease.
Section 5: Of Abstinence or Abandonment
Article 112
When the husband takes an oath of abstinence from his wife or abandons
her, the wife may petition the court, which will set a deadline of four
months, and if after this time the husband has not repented his oath,
the court shall grant the divorce.
Section 6: Of Divorce Suits
Article 113
Decisions shall be rendered in divorce suits based on one of the grounds
provided for in preceding Article 98 after a reconciliation attempt,
except in cases based on absence, and within a delay not to exceed six
months, barring exceptional circumstances.
The court shall also rule on the vested rights of the wife and children,
as specified in
preceding Articles 84 and 85.
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Title Five: Of Divorce by Mutual Consent or Divorce
in Exchange for Compensation
Chapter I: Of Divorce by Mutual Consent
Article 114
The spouses may mutually agree on the principle of ending their conjugal
relationship with or without conditions, provided that the conditions
do not contradict the provisions of this Moudawana, and do not harm
the children's interests.
When the spouses agree, one or both of them shall petition the court
for divorce, accompanied by the authorization to validate it.
The court shall attempt to reconcile the
husband and wife. When this proves impossible, the court shall authorize
the certification and validation of the divorce.
Chapter II: Of Divorce in Exchange for Compensation (khol)
Article 115
The spouses may agree on divorce in exchange for compensation according
to the provisions of preceding Article 114.
Article 116
A woman of legal majority may obtain divorce in exchange for compensation,
whereas divorce by a woman who has not yet reached the age of legal
majority occurs when a third party pays in her place, and she cannot
be forced to undertake this procedure unless her legal tutor consents.
Article 117
The wife may recover the sum she paid to obtain the divorce if she proves
that she acted under duress or as the result of harm caused by her husband,
and in all cases the divorce shall be granted.
Article 118
Anything that constitutes a source of legal commitment may be used to
pay to obtain divorce, without, however, any abuse or exaggeration.
Article 119
If the woman is in a precarious financial situation, the compensation
for divorce shall not be exchanged from funds reserved for the children
or their maintenance.
If the woman who divorced in exchange for compensation cannot financially
maintain her children, their maintenance becomes an obligation of the
father, without calling into question his right to renew conjugal life
with her.
Article 120
If the spouses agree on the principle of divorce in exchange for compensation,
yet disagree on its amount, the case shall be brought before the court
to attempt reconciliation. If the reconciliation attempt does not succeed,
the court shall grant the divorce in exchange for compensation after
fixing its amount, taking into consideration the amount of the dowry,
the duration of the marriage, the reasons for the divorce petition,
and the material situation of the wife.
If the wife maintains her request for a divorce
in return for compensation and the husband does not consent, she may
resort to the irreconcilable differences procedure.
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Title Six: Of Divorce and Repudiation Categories
Chapter I: Of Interim Orders
Article 121
When a suit between the spouses is brought before the court, and cohabitation
between them is impossible, the court may, on its own motion or upon
request, prescribe interim measures it deems appropriate for the wife
and children pending judgment on the case, including the choice of living
with one of her or her husband's relatives. Such measures shall be immediately
enforced by the Public Prosecutor.
Chapter II: Of Revocable and Irrevocable Divorces
Article 122
Any divorce granted by the court is irrevocable, with the exception
of cases of divorce on the grounds of abandonment and non maintenance.
Article 123
Any divorce pronounced by the husband is revocable, with the exception
of a third
repudiation, divorce before the marriage is consummated, divorce by
mutual consent, divorce in exchange for compensation, and repudiation
when the husband has assigned his right to exercise it to his wife.
Article 124
The husband may take his wife back during the legal waiting period (iddat).
If the husband wants to take back his wife after a revocable divorce,
two adouls (public notaries) shall certify this and immediately inform
the judge.
Before validating the "resumption document," the judge must
summon the wife to inform her of this. If she doesn't comply with this
request and refuses to return, she may resort to the irreconcilable
differences procedure in preceding Article 94.
Article 125
At the conclusion of the legal waiting period (iddat) following a revocable
divorce, the
woman is deemed irrevocably divorced.
Article 126
Irrevocable divorce not practiced for the third time puts an immediate
end to the marriage relationship, but does not prohibit the renewal
of the marriage contract.
Article 127
Divorce for the third time puts an immediate end to the marriage relationship
and prohibits the renewal of the marriage contract with the divorced
woman unless the iddat (legal waiting period) following a legitimately
consummated marriage with another husband has expired.
Article 128
Judicial decisions on divorce, divorce in exchange for compensation
or annulment, rendered in accordance with the provisions of this code,
shall not be open to appeal as concerns the termination of the marital
relationship.
Decisions rendered by foreign courts concerning
repudiation, divorce, divorce in exchange for compensation, or annulment
shall be admissible when they are issued by a court with jurisdiction
over the matter and are based on grounds for terminating the marriage
relationship that do not contradict those contained in this Moudawana.
The same standard applies for decrees issued abroad before officials
and civil servants with jurisdiction in the matter after meeting all
required legal measures, noting on these decrees the mention that they
are enforceable in conformity to Articles 430, 431 and 432 of the Civil
Procedure Code.
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Title Seven: Of the Effects of the Dissolution of
the Marriage Contract
Chapter I: Of the Legal Waiting Period
(iddat)
Article 129
The legal waiting period starts to run from the date of the repudiation,
divorce, annulment or death.
Article 130
The legal waiting period is mandatory only when the marriage has been
consummated and real intimacy has occurred, or upon the death of the
husband.
Article 131
During the legal waiting period the divorced woman or the woman whose
husband has died shall reside in the marital home or in another home
prepared for her.
Section 1: Of the Legal Waiting Period Following the Death of the Husband
Article 132
The legal waiting period of the woman whose husband has died and who
is not pregnant is four full months and ten days.
Section 2: Of the Legal Waiting Period of the Pregnant Woman
Article 133
The pregnant woman's legal waiting period ends with the delivery of
the baby or the end of the pregnancy.
Article 134
In the event the woman observing the legal waiting period claims doubt
about her pregnancy, and there is a dispute on this matter, the case
shall be referred to the court, which will resort to expert assistance
to ascertain the pregnancy and date of conception in order to decide
whether the legal waiting period should continue or not.
Article 135
The maximum duration of pregnancy is one year from the date of the divorce
or death of the husband.
Article 136
The legal waiting period for non pregnant women is:
1- three full cycles for women who still have menstrual cycles;
2- three full months for women who have never had menstrual cycles or
for those who have reached menopause, but if she menstruates before
the end of the three months, she continues her legal waiting period
for three additional cycles;
3- for women whose menstrual cycles are late or irregular or who cannot
distinguish
menstrual flow from other secretions, they observe the legal waiting
period for three
cycles after a waiting period of nine months.
Chapter II: Of the Overlapping of Legal Waiting Periods
Article 137
When the husband of the woman who was divorced though a revocable divorce
dies while she is still under the legal waiting period, she observes
the waiting period for death rather than the legal waiting period for
divorce.
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Title Eight: Of Divorce Certification Procedures
and Content
Article 138
Divorce must be certified by two 'adouls' (public notaries) specialized
in the matter, once the court authorizes it and after submission of
the marriage record.
Article 139
The divorce decree should include the following:
1-The date of the divorce authorization and its number;
2-The identities, addresses, identity card numbers or their substitute
of the former spouses;
3-The marriage contract date of issuance, its number in the record cited
in preceding Article 68;
4-The type of divorce and its number.
Article 140
The wife has the right to obtain the divorce decree fifteen days after
the divorce has been certified, and the husband may also obtain a copy.
Article 141
The court shall submit a summary of the repudiation decree, the "resumption
document," the divorce decree, the marriage contract annulment,
or its invalidation to the Civil Status Officer at the birthplace of
both spouses, along with the certificate of submission of a copy of
it fifteen days after it has been certified or after the issuing of
divorce decree by the court, or the annulment or invalidation.
The Civil Status Officer must make mention
of the content of the summary in the margins of the birth certificate
of both spouses. If both or either of the spouses was not born in Morocco,
the summary shall be remitted to the Attorney General at the Court of
First Instance in Rabat.
The information that must be included in
the summary cited in the first paragraph above shall be determined in
a decree by the Minister of Justice.
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BOOK THREE: OF BIRTH
AND ITS EFFECTS
Title One: Of Filiation
and Paternity
Chapter I: Of Filiation
Article 142
Filiation is established through the attribution of a child to his or
her parents, and it may be legitimate or illegitimate.
Article 143
Filiation to the father and mother is considered legitimate until proven
to the contrary.
Article 144
Legitimate filiation is established to the father in cases where one
of the paternity conditions is fulfilled, and it creates all of the
legal effects of paternity.
Article 145
When the filiation of a child of unknown paternity is established by
acknowledgement of paternity or by judicial decision, the child shall
become legitimate, acquire his father's name and religion, they mutually
inherit from each other, and such filiation creates the marriage impediments
and results in the paternity and filiation rights and duties.
Article 146
Filiation to the mother produces the same effects regardless of whether
the children are the result of a legitimate or illegitimate relationship.
Article 147
Filiation to the mother is established by:
- the delivery of the child;
- acknowledgement by the mother, in accordance with the conditions cited
in Article 160 below;
- judicial decision.
Maternal filiation is deemed legitimate in
cases of marriage, sexual relations by error and rape.
Article 148
Illegitimate filiation to the father does not produce any of the effects
of legitimate filiation.
Article 149
Adoption has no legal value and does not result in any of the effects
of legitimate filiation. "Gratitude adoption" (jaza) or "testamentary
adoption" (tanzil) cannot prove paternity, and are subject to the
terms of the testament.
Chapter II: Of Paternity and Modes of its Proof
Article 150
Paternity is a legitimate bond between the father and the child that
is transmitted through generations.
Article 151
Paternity is established by presumption and may only be refuted by judicial
decision.
Article 152
Paternity is established by:
1- the conjugal bed;
2- acknowledgement;
3- sexual relations by error.
Article 153
The conjugal bed is proven by the same means used to prove the marital
relationship. The conjugal bed that meets the required conditions is
irrefutable proof of paternity, only subject to disavowal by the husband
through a sworn allegation of adultery committed by his spouse, or by
means of an irrefutable expertise, upon two conditions:
- The husband must present solid proof of his allegations;
- Issuance of a judicial decision ordering the expertise.
Article 154
The paternity of a child is proven by the conjugal bed:
1- If the child is born six months after the marriage contract was concluded
and the
opportunity for sexual intercourse has existed, whether the marriage
contract is valid or defective;
2- When the child is born during the year that follows the date of separation.
Article 155
If a pregnancy results from sexual relations by error and the woman
delivers within the minimum and maximum statutory pregnancy period,
the child's paternity shall be attributed to the author of the sexual
intercourse.
Paternity due to sexual relations by error is established by all legal
means.
Article 156
If an engagement takes place by an offer and acceptance but for reasons
of force majeure the marriage contract was not officially concluded,
and during the engagement period the engaged woman shows signs of pregnancy,
the child is affiliated to the engaged man on the grounds of sexual
relations by error when the following conditions are met:
a- If the two engaged person's families are
aware of the engagement, and if the woman's legal tutor, if required,
has approved the engagement;
b- If it appears that the engaged woman became pregnant during the engagement
period;
c- If the two engaged persons mutually acknowledge that they are responsible
for the pregnancy.
These conditions are established by a judicial
decision not open to appeal.
If the engaged man denies responsibility for the pregnancy, all legal
means may be used to prove paternity.
Article 157
When paternity is proven, even if the marriage is defective, if it results
from sexual relations by error, or by acknowledgement, it produces all
of the effects of kinship, including the prohibition of marriage within
degrees of kinship and breastfeeding relations, and creates kinship
maintenance and inheritance rights.
Article 158
Paternity is proven by the conjugal bed, the father's acknowledgement,
the testimony of two public notaries (adouls), oral testimony, and by
all other legal means, including judicial expertise.
Article 159
The husband's paternity of the child and the pregnancy of his wife may
only be refuted by judicial decision, in accordance with preceding Article
153.
Article 160
Paternity is proven by the father's acknowledgement of his paternity
of the child in question, even in a "deathbed declaration",
according to the following conditions:
1- That the acknowledging father be of sound mind;
2- That the child's paternity be unknown;
3- That the declarations of the author of the acknowledgement not be
contradicted by the truth or plausibility;
4- That the child accepts the acknowledgement if she or he has reached
the age of legal majority, and if not, she or he has the right to petition
to contest the paternity upon coming of age.
The designated mother may deny her affiliation
to the child or present evidence that rebuts it. Any interested party
may contest the validity of the existence of the preceding conditions
for acknowledgement provided that the acknowledged person is still alive.
Article 161
Only the father may acknowledge paternity.
Article 162
The acknowledgement shall be proven by official certification or by
an indisputable
handwritten statement irrefutably made by the person making the acknowledgement.
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Title Two: Of Custody
Chapter I: General Provisions
Article 163
Custody preserves the child from harm and ensures his or her education
and the protection of his or her interests. The custodian must take
all necessary measures to guarantee the physical and psychological security
of the child in his or her custody, manage his or her interests in the
absence of the legal tutor, and as necessary when then interests of
the child in his or her custody are jeopardized.
Article 164
Custody is the parents' duty as long as the marriage relationship exists.
Article 165
If among the people entitled to be entrusted with custody no one accepts
it or fulfils the required conditions, either the party concerned or
the Public Prosecutor's Office may request the court to appoint whomever
it deems fit among the child's relatives or other persons, or else selects
an institution designated for this purpose.
Article 166
Custody is exercised until both the boy and the girl reach the age of
legal majority.
Following the termination of his or her parents' marriage, a child who
completes fifteen years of age has the right to choose either the father
or mother as custodian.
A child without parents may choose one of the relatives cited in following
Article 171,
provided that his or her interests are not jeopardized and that the
legal tutor consents.
In the absence of agreement, the case shall be presented to the judge
to settle the matter according to the interests of the minor.
Article 167
The custodial salary and expenses shall be covered by the person responsible
for the child's maintenance, and are separate from the breastfeeding
salary and child support.
No custodial salary is due the mother when the marriage relationship
still exists, or during the legal waiting period following a revocable
repudiation.
Article 168
Accommodation expenses for the child shall be fixed separately from
child support, the custodial salary and other custodial expenses.
The father must provide accommodation for
his children or pay a sum of money estimated by the court for the payment
of their rent, in accordance with the provisions of Article 191 below.
Children may not be evicted from their parents'
conjugal home until the father executes the judgment for their accommodation.
The court shall define the measures and procedures that will guarantee
the execution of the judgment by the father concerned.
Article 169
The father or the legal tutor and the mother custodian must safeguard
the child's interests, including his or her education and upbringing;
however, the ward always spends the night at the custodian's house unless
the judge decides otherwise.
If the custodian is other than the mother, that custodian must supervise
and follow up daily on the child's homework.
In the event of disagreement between the
legal tutor and the custodian, the case shall be presented to the court
to settle according to the child's interests.
Article 170
The right of custody shall be restored to the person entitled to
it when the grounds for its withdrawal no longer exist. The court may
reconsider custody when it is in the interests of the child.
Chapter II: Of People Entitled to Custody and their Order of Priority
Article 171
Child custody shall be awarded first to the mother, then to the father,
then to the maternal grandmother of the child. If this proves difficult,
the court shall decide, in light of the evidence before it and in view
of what would serve the interests of the child, to award custody to
the most qualified of the child's relatives, while guaranteeing the
child suitable lodging as one of the custody obligations.
Article 172
The court may resort to the assistance of a social worker to prepare
a report on the custodian's home and the extent to which it meets the
material and moral needs of the child.
Chapter III: Conditions for Awarding Custody and Causes for its Withdrawal
Article 173
Custodian Criteria:
1. Persons other than the parents must have reached the age of legal
majority;
2. Moral rectitude and trustworthiness;
3. The ability to raise the child, protect his or her health and ensure
his or her moral and religious upbringing and schooling;
4. Women petitioners for custody may not marry except in the cases provided
for in Articles 174 and 175 below.
Should changes occur in the status of the custodian that are likely
to cause harm to the child, child custody shall be withdrawn and awarded
to the next eligible person.
Article 174
The marriage of a woman custodian other than the mother shall result
in her loss of custody, except in the two following instances:
1. If her husband is in a degree of kinship relations that precludes
marriage, or is the child's legal representative;
2. If she is the child's legal representative.
Article 175
The marriage of the custodial mother shall not result in the loss of
her custody of the child in the following cases:
1. If the child has not attained the age of seven years; or if such
a separation may inflict harm on him or her;
2. If the child suffers from an illness or a handicap which renders
his or her custody difficult for any person other than the mother;
3. If her husband is in a degree of kinship relations precluding marriage,
or is the child's legal representative;
4. If she is the child's legal representative.
The marriage of the custodial mother shall exonerate the father from
payment of the child's accommodation expenses and the custodial salary,
and the father shall remain responsible for payment of child support.
Article 176
Silence on the part of the person entitled to custody of the child for
a period of one year after she or he has knowledge of the marriage shall
result in the forfeiture of his or her right to custody, except in cases
of force majeure.
Article 177
The father and the mother of the child, as well as his or her relatives
and any third party, shall notify the Public Prosecutor's Office of
any harm endured by the child so that it may take all necessary measures
to safeguard the child's rights, including withdrawal of custody.
Article 178
Child custody is not lost if the custodian or legal tutor moves to another
locality within Morocco, unless it is established for the court that
there is cause for its withdrawal, taking into account the best interests
of the child, the particular conditions of the father or legal representative,
as well as the distance separating the child from his or her legal tutor.
Article 179
The court may, at the request of the Public Prosecutor's Office or the
child's legal
representative, include in the custody decree or any subsequent decision
an injunction prohibiting travel by the child outside of Morocco without
the prior consent of his or her legal representative.
The Public Prosecutor's Office shall notify
the competent authorities about the injunction so that they may take
all measures necessary to guarantee the execution of this decision.
In the event that permission to travel outside
of Morocco with the child is not obtained, the custodian may petition
the judge in charge of expeditious cases to secure such permission.
Permission shall not be granted until the judge has ascertained that
such travel is temporary and that the child will be returned to Morocco.
Chapter IV: Of Child Visitation
Article 180
The non-custodial parent is entitled to visit and be visited by the
child.
Article 181
The parents may organize such visits by mutual agreement, which is then
conveyed to the court and its terms recorded in the custody decree.
Article 182
In the event the parents fail to agree, in its custody decree the court
shall establish the visitation times and places with such exactitude
as to prevent any attempt intended to thwart such visits. In its determination,
the court shall take into account the conditions of each party and the
specific circumstances pertaining to each case, and its decision may
be open to appeal.
Article 183
Should any circumstances arise that render the organization of visits,
as previously agreed upon by both parents or as determined by court
decree, detrimental to either person or to the child, the terms of the
visits may be revised and amended to take into account the new circumstances.
Article 184
The court may take any measures it deems necessary, including the modification
of the visitation terms and withdrawal of custody, in the event of breach
of or deception in the execution of the agreement or the visitation
decree.
Article 185
If either of the child's parents should die, the parents of the deceased
shall be entitled to visit the child in accordance with the previous
child visitation arrangements.
Article 186
The court shall take into account the interests of the child when applying
the provisions of the present Section.
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Title Three: Of Financial Maintenance
Chapter I: General Provisions
Article 187
Each person shall support himself or herself with his or own resources,
with the exception of those persons who have been statutorily exempted.
Financial maintenance for others is due for reasons of marriage, kinship,
and commitment.
Article 188
No person is required to pay maintenance to any other person unless
he first has sufficient means to support himself, and self-sufficiency
is presumed until proven to the contrary.
Article 189
Maintenance shall include food, clothing, medical care, and all that
is deemed indispensable, as well as children's education, taking into
consideration the provisions of preceding Article 168.
A number of elements shall be taken into account to fix
maintenance: a pondered average, the income of the maintenance provider,
the status of the maintenance recipient, the cost of living, as well
as the customs and traditions prevailing in the locality where maintenance
is awarded.
Article 190
In assessing maintenance, the court shall rely on the declarations made
by the two parties and the evidence they present, taking into account
the provisions of preceding Articles 85 and 189, and may resort to expert
assistance.
All cases pertaining to maintenance shall be decided within a maximum
of one month.
Article 191
The court shall determine the means by which the maintenance decree
and accommodation costs will be executed from the resources of the person
ordered to pay them, or withheld from his source of income or salary
earned, and if necessary any guarantees to ensure the continuity of
maintenance payments.
The decision rendered on the assessment of maintenance
shall remain in effect until the issuance of another decision that replaces
it or until the right of the person benefiting from the maintenance
lapses.
Article 192
No petition for an increase, or alternatively, a decrease in the agreed-upon
or legally fixed maintenance shall be admissible before one year has
elapsed, except in exceptional circumstances.
Article 193
If the person obligated to pay maintenance is unable to pay it to all
persons he is legally required to support, precedence shall be given
to the wife, to younger children, be they boys or girls, then to daughters,
sons, mother, and then to the father.
Chapter II: Of Maintenance Paid to the Wife
Article 194
The husband shall be obligated to pay maintenance to his wife the moment
their marriage is consummated, as well as if she has bidden her husband
to consummate their marriage once it has been duly concluded.
Article 195
Maintenance for the wife shall be awarded by judicial decision starting
from the date the husband has ceased to pay the maintenance expenses
incumbent upon him, and the wife does not lose her right to maintenance
unless she has been ordered to return to the conjugal home and has refused.
Article 196
A wife who has been revocably repudiated shall lose her right to accommodation
but not to maintenance if she leaves the home where she is required
to observe the legal waiting period without the consent of her husband
or without a good reason.
A wife who is pregnant and has been irrevocably repudiated shall be
entitled to maintenance until the delivery and if she is not pregnant
she is entitled to accommodation only until her legal waiting period
has ended.
Chapter III: Of Maintenance Paid to Close Relatives
Article 197
Among close relatives, maintenance is an obligation of children towards
their two parents, and of the two parents towards their children, according
to the dispositions of this Moudawana.
Section 1: Of Maintenance Paid to Children
Article 198
Maintenance paid by the father to his children shall continue until
they come of legal age, or until those who have pursued their education
reach the age of twenty-five.
In any case, maintenance paid to the daughter shall not cease until
she can earn a living on her own or until her maintenance becomes incumbent
upon her husband.
The father shall continue to pay maintenance to children suffering from
a handicap and unable to earn a living.
Article 199
In the event the father becomes wholly or partly unable to pay maintenance
to his children, and the mother is affluent, the latter shall become
responsible for their maintenance in proportion to the amount the father
is unable to pay.
Article 200
An injunction to pay maintenance to children shall be issued starting
from the day such payment has ceased.
Article 201
The salary due for the breastfeeding of the child shall be incumbent
upon the person to whom the maintenance of the child devolves.
Article 202
Whoever is responsible for child maintenance but fails to pay it without
good reason for a period exceeding one month shall become liable under
the provisions governing family neglect.
Section 2: Of Maintenance Paid to Parents
Article 203
Maintenance due to parents is shared by their children according to
their affluence and not according to their inheritance shares.
Article 204
The injunction ordering maintenance for parents shall start from
the date the request was filed.
Chapter IV: Of the Commitment to Pay Maintenance
Article 205
Whoever commits to paying maintenance to another person, be he young
or old, for a limited period of time shall become liable for his commitment,
and if the maintenance is for an undetermined period the court shall,
in determining the period in question, refer to customary practice.
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BOOK FOUR: OF LEGAL
CAPACITY AND REPRESENTATION
Title One: Of Legal
Capacity, Causes of Guardianship due to Legal Incapacity (Al-Hajr),
and Acts of Disposal
Chapter I: Of Legal Capacity
Article 206
There are two types of capacity: legal capacity and functional capacity.
Article 207
Legal capacity entails the acquisition of rights and the assumption
of liabilities, as defined by the law, that are indivisible from a person
during his lifetime and of which he cannot be deprived.
Article 208
Functional capacity entails the exercise of personal and financial rights
and the power of disposal, with the law defining the conditions governing
their acquisition and causes of their limitation or deprivation.
Article 209
The age of legal majority is eighteen complete Gregorian years.
Article 210
Any person that comes of legal age and presents none of the causes which
limit or deprive him of his capacity shall be considered fully able
to exercise his rights and to assume his obligations.
Article 211
Any person devoid of or lacking in capacity shall be subjected, according
to the
circumstances, to the provisions governing legal tutelage, testamentary
guardianship or courtappointed guardianship, in accordance with the
rules set forth in this Moudawana.
Chapter II: Of Grounds for Al-Hajr (Placing Under Guardianship due
to Incapacity) and Procedures to Establish it
Section 1: Of the Grounds for Al-Hajr
Article 212
The grounds for placing a person under guardianship fall into one of
two categories: the first impairs a person's capacity while the other
deprives the person of capacity.
Article 213
Those considered as not fully capable of legally exercising their rights:
1. a young person who has attained the age of discernment but not yet
reached the age of legal majority;
2. a prodigal person;
3. a demented person.
Article 214
A discerning young person is one who has completed twelve full Gregorian
years.
Article 215
A prodigal person is one who squanders his money on trifles or on things
reasonable people consider futile, in a way which inflicts harm on himself
or on his family.
Article 216
A demented person is a person suffering from a mental handicap that
prevents him from controlling his thoughts and actions.
Article 217
Those considered as incapable of exercising their rights:
First, a young person that has not attained the age of discernment;
Second, an insane person and a person who has lost his mind.
A person who loses his mind in an intermittent way shall be considered
as being fully capable during his intervals of lucidity. Voluntary loss
of mind shall not dispense one from responsibility.
Article 218
Guardianship over a minor shall terminate once the minor comes of legal
age, unless she or he is placed under guardianship anew due to the existence
of a cause warranting it.
A person placed under guardianship due to a mental handicap
or prodigality may request the court to remove it if she or he demonstrates
signs of majority, and his or her legal representative may do likewise.
A minor who has attained the age of sixteen may request
the court to declare him or her as having reached legal majority. His
or her legal representative may also request the court to declare the
majority of the minor who has attained the aforementioned age, if the
minor demonstrates signs of majority.
Declaring the majority of a minor results in the acquisition
by the latter of his property, as well as full capacity to manage and
dispose of it, and the exercise of non-monetary rights shall remain
subject to the legal texts governing them.
In all cases, legal majority may not be conferred on any
of the above persons unless it has been proven to the court following
all necessary legal procedures.
Article 219
If the legal representative considers that the ward, before coming of
legal age, has been afflicted with a mental handicap or has become prodigal,
the representative shall refer the matter to the court, which will examine
whether guardianship should continue, and the court may resort to all
legal means of proof.
Section 2: Of the Procedures to Establish al-Hajr and to Remove it
Article 220
Demented, prodigal, and insane persons shall be placed under guardianship
by a ruling from the time their state is established, and guardianship
shall be removed as of the date of the extinction of its causes, in
accordance with the provisions of this present Moudawana.
Article 221
A ruling placing a person under guardianship or removing it shall be
issued by the court at the request of the person concerned, the Public
Prosecutor's Office, or any person with a stake in the matter.
Article 222
In upholding the guardianship or removing it, the court shall rely on
medical expertise as well as all other legal means of proof.
Article 223
A ruling placing a person under guardianship or removing it shall be
publicized by all means deemed appropriate by the court.
Chapter III: Of the Acts of the Person Placed Under Guardianship
Section 1: Of the Acts of a Person Devoid
of Capacity
Article 224
The acts of a person devoid of capacity are null and without effect.
Section 2: Of the Acts of a Person Not Fully Capable
Article 225
The acts of a discerning young person are governed by the following
provisions:
1. They are valid if they are fully beneficial to him or her;
2. They are null if they are harmful to him or her;
3. Their effects shall be subject to the permission of his or her legal
representative, if the acts are neither clearly beneficial nor harmful,
and the legal representative shall, within the limits of the authority
vested in him, safeguard the interests of the ward.
Article 226
A discerning young person may receive a portion of his property to manage
on a probationary basis. Permission shall be granted by the legal tutor,
or by decision of the Guardianship Judge on the basis of a request initiated
by the testamentary guardian, the court-appointed guardian or the young
person concerned.
The Guardianship Judge may revoke the decision granting
this permission at the request of the testamentary guardian, the court-appointed
guardian, the Public Prosecutor's Office, or on its own motion, if it
is established that there is mismanagement by the person concerned.
A person under guardianship is deemed fully capable of
acts he or she has been authorized to perform, as well as to engage
in legal proceedings concerning them.
Article 227
The legal tutor may withdraw the permission granted the young discerning
person if there are grounds for it.
Article 228
The acts of prodigal and demented persons shall be subject to the provisions
of preceding Article 225.
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Title Two: Of Legal Representation
Chapter I: General Provisions
Article 229
Legal representation of a minor shall be exercised by the legal tutor,
the testamentary
guardian or a court-appointed guardian.
Article 230
Legal representative in this code means:
1. The legal tutor: the father, the mother, and the judge;
2. The testamentary guardian: designated in a testament by the father
or mother;
3. The court-appointed guardian.
Article 231
Legal representation is exercised by:
1. A father of legal majority;
2. A mother of legal majority, in the absence of the father or when
the father is deprived of his capacity;
3. A testamentary guardian designated by the father;
4. A testamentary guardian designated by the mother;
5. The judge;
6. The court-appointed guardian.
Article 232
In the event the minor is under the effective protection of a person
or an institution, that person or institution shall be considered as
the legal representative of the minor in his or personal affairs until
the judge appoints an official guardian for the minor.
Article 233
A legal representative shall act as the legal tutor of a minor and his
or her property until the minor has attained legal majority. He or she
shall act in the same way regarding an insane person until the guardianship
is removed by court decision. Legal representation of prodigal and demented
persons shall be limited to their property until guardianship is removed
by court decision.
Article 234
The court may appoint a court-appointed guardian, in addition to the
testamentary guardian, in order to assist him or her or to manage some
of the minor's financial interests.
Chapter II: Of the Functions and Responsibilities of the Legal Representative
Article 235
The legal representative shall manage the personal affairs of the ward,
including religious orientation, training, and preparation for life,
and shall also assume the daily management of the ward's property.
The legal representative is required to notify the Guardianship
Judge of the existence of money, documents, jewellery, and any valuable
movable property and is for failure to do so, and on the basis of a
judicial order the money and movable property shall be deposited in
an account for the minor at a public institution for it to be preserved.
In the exercise of these responsibilities, the legal representative
shall be subjected to judicial supervision, in accordance with the provisions
of the following articles.
Section 1: Of the Legal Tutor
§ 1. The Father
Article 236
By law, the father is the tutor of his children unless he is disqualified
by judicial order. The mother may manage urgent affairs of her children
in the event the father is prevented from doing so.
Article 237
The father may designate a testamentary guardian for his child or an
unborn child and is entitled to revoke any such designation.
The testament shall be submitted to a judge for verification and approval
upon the death of the father.
§ 2. The Mother
Article 238
The conditions under which the mother may assume tutelage over her children
are:
1. She must have reached the age of legal majority;
2. Non-presence of the father due to his death, absence, or incapacity.
The mother may designate a testamentary guardian for her child, and
is entitled to revoke any such designation.
The testament shall be submitted to a judge for verification
and approval upon the death of the mother. In the event of co-existence
of a testamentary guardian appointed by the father and the mother, the
testamentary guardian's responsibility shall be limited to the supervision
of the mother's management of the child's affairs and, if necessary,
notification of the court.
Article 239
The mother and any benefactor who donates money to the ward may stipulate
that he or she assume legal representation in the management and investment
of the money donated, and this condition shall be enforceable.
§ 3. Provisions Common to Tutelage by both Parents
Article 240
The tutor shall not be subjected to a priori court supervision in the
management of the ward's money, and no legal representation shall be
opened unless the value of the ward's property exceeds two hundred thousand
(200,000) dirhams. However, the Guardianship Judge may order legal representation
for amounts lower than the aforementioned figure if he deems it to be
in the interests of the ward. This amount may be increased by administrative
regulation.
Article 241
If the value of the ward's property exceeds two hundred thousand (200,000)
dirhams during its management, the tutor shall notify the judge so that
legal representation may be opened. The ward or his or her mother may
also petition the judge to this effect.
Article 242
At the conclusion of the tutelage, and in the existence of legal representation,
the tutor shall notify the Guardianship Judge of the status of the ward's
property in a detailed recapitulatory report submitted for approval.
Article 243
In all cases where legal representation is opened, the tutor shall submit
an annual report detailing the management and investment of the ward's
property, and describing the care, education and guidance given to the
ward.
Following the submission of this report, the court may
take all measures it deems necessary to protect the ward's property
and his financial and moral interests.
Section 2: Of the Testamentary Guardian and the Court-Appointed Guardian
Article 244
In the absence of the mother and a testamentary guardian, the court
shall appoint a legal guardian for the ward, selecting the most qualified
person from among the agnates, failing that, among other relatives,
and if not, from among other persons.
The court may designate two or more persons to exercise guardianship
if it deems that it is in the best interests of the ward, and it attributes
their respective functions.
The members of the ward's family, the petitioners for guardianship,
and any other person with a vested interest may propose a candidate
for the court-appointed guardianship. The court may appoint an interim
guardian if need be.
Article 245
The court shall immediately refer the case to the Public Prosecutor's
Office for an opinion which must be given within a deadline not to exceed
fifteen days, and the court shall consider the case within a time limit
not exceeding fifteen days from the date of the reception of the Public
Prosecutor's Office's opinion.
Article 246
Testamentary and court-appointed guardians must be fully capable, diligent,
and honest.
The solvability requirement is left to the appreciation of the court.
Article 247
Testamentary and court-appointed guardianship may not be conferred upon:
1. A person who has been convicted for theft, breach of trust, forgery,
or any other crime against morality;
2. Anyone who has been adjudicated bankrupt or placed in liquidation;
3. A person in litigation or familial conflict with the ward, where
the conflict could impact adversely on the ward's interests.
Article 248
The court may appoint a surrogate guardian tasked with supervising the
acts of the
testamentary or court-appointed guardian and orienting him or her based
on the ward's interests, and the surrogate guardian shall likewise notify
the court when he or she considers the management of the testamentary
or court-appointed guardian deficient or fears that the ward's estate
may be depleted.
Article 249
If the ward's estate has not been inventoried, it becomes incumbent
upon the testamentary or court-appointed guardian to carry out an inventory,
and in all cases shall include the following:
1. Observations that the testamentary or court-appointed guardian may
have concerning the inventory;
2. A proposed amount of annual maintenance for the ward and any person
for whom the ward is responsible;
3. Specific propositions of urgent measures to be taken to safeguard
the ward's estate;
4. A plan for the management of the ward's estate;
5. The known monthly or annual revenues generated by the ward's estate.
Article 250
The inventory, along with its supporting documents, shall be kept in
the legal representation record and transcribed on the monthly or daily
management register if necessary. The form and the content of the register
shall be defined in a decree by the Minister of Justice.
Article 251
At the conclusion of the inventory, the Public Prosecutor's Office,
the legal representative, the family council, or one or several of the
ward's relatives may submit observations to the Guardianship Judge regarding
the estimation of maintenance necessary for the ward, and to organize
his or her upbringing, education, and the management of the ward's estate.
A family council shall be established and entrusted with
aiding the court in matters pertaining to the family's affairs; the
composition and the tasks of the council shall be defined by administrative
regulations.
Article 252
By order and under the supervision of the Guardianship Judge, two Adouls
(public notaries) shall undertake a final and comprehensive inventory
of the ward's assets, vested rights and liabilities, after notification
of the Public Prosecutor's Office and in the presence of the heirs,
the legal representative, and the ward if he or she has attained the
age of fifteen.
Expert assistance may be sought in the inventory process,
the evaluation of assets, and the assessment of liabilities.
Article 253
The testamentary or court-appointed guardian must record all acts that
he or she undertakes on behalf of the ward and their dates in the register
provided for in preceding Article 250.
Article 254
If assets of the ward materialize that had not been entered in the previous
inventory, the testamentary or court-appointed guardian shall attach
an appendix to the first inventory.
Article 255
The testamentary or court-appointed guardian shall submit through two
certified accountants appointed by the judge an annual financial statement
with all supporting documents to the Guardianship Judge.
The judge shall not approve the financial statements until
he has scrutinized and controlled them and verified their accuracy.
If he detects any errors, he shall take all measures necessary in order
to safeguard the ward's rights.
Article 256
The testamentary or court-appointed guardian shall respond to requests
by the Guardianship Judge at any time in order to provide clarifications
about the management of the ward's estate and furnish a financial statement.
Article 257
The testamentary or court-appointed guardian shall be held liable for
mismanagement of the ward's estate. The provisions applicable to a salaried
trustee shall apply to him or her even if he or she performs his mission
for free. The testamentary or court-appointed guardian may be liable
for criminal proceedings, if necessary.
Article 258
The mission of the testamentary or court-appointed guardian comes to
an end in the following cases:
1. The death of the ward, or the death or absence of the testamentary
or court-appointed guardian;
2. When the ward attains the age of legal majority, unless the court
decides to maintain the guardianship for other reasons;
3. When the mission for which the testamentary or court-appointed guardian
was designated has been accomplished or when the period of time for
which the testamentary or courtappointed guardian has been designated
expires;
4. When a justification invoked to resign from the mission has been
accepted;
5. When he or she loses capacity or is discharged or removed from his
or her functions.
Article 259
If the mission of the testamentary or court-appointed guardian comes
to an end for reasons other than death or loss of civil capacity, she
or he shall submit a financial statement with the requisite supporting
documents within a deadline fixed by the Guardianship Judge and not
to exceed thirty days, except in compelling circumstances.
The court shall examine the submitted financial statement.
Article 260
The testamentary or court-appointed guardian is liable for all damages
caused by any
unjustified delay in the submission of the financial statements or in
the transfer of the ward's assets.
Article 261
The estate shall be transferred to the ward when he or she attains majority,
and to his or her heirs upon death, and to the person who assumes the
responsibilities of the testamentary or court-appointed guardian in
other cases. In the event the estate is not transferred, the provisions
of Article 270 below shall apply.
Article 262
In the event the testamentary or court-appointed guardian dies or loses
his or her civil capacity, the Guardianship Judge shall take the appropriate
measures to protect and safeguard the ward's estate.
Debts and compensation due to the ward from the deceased
testamentary or court-appointed guardian's estate are privileged liens,
in accordance with the ranks provided for in the second paragraph, bis
of Article 1248 of the Sherifyan Dahir (or Royal Edict), dated August
12, 1913, which serves as the Law of Obligations and Contracts.
Article 263
The ward who has come of age or whose guardianship has been removed
reserves the right to take legal action against the testamentary or
court-appointed guardian, or any other person entrusted with the same
if he or she deems that any acts related to the management of his or
her accounts or estate has been adverse to his or her interests.
Such legal actions must be brought within the two years following the
attainment of majority or the removal of the guardianship, except in
cases of falsification, fraud or concealment of documents, which shall
be actionable within one year following knowledge of such acts.
Article 264
The testamentary or court-appointed guardian may request compensation
for exercising legal representation, and such compensation shall be
fixed by the court as of the date of the request.
Chapter III: Of Judicial Oversight
Article 265
The court shall undertake the oversight of legal representation in accordance
with the
provisions outlined in this Book. Oversight entails supervising the
interests of the incapacitated and persons whose capacity is impaired,
and ordering all measures necessary to preserve their interests and
supervise their management.
Article 266
If a deceased person leaves behind minor heirs, or if the testamentary
or court-appointed guardian dies, the local administrative authorities
and the relatives with whom the deceased lived shall notify the Guardianship
Judge of the death within a time limit not to exceed eight days, and
the Public Prosecutor's Office is required to notify the judge as soon
as it learns of the death.
The deadline cited in the previous paragraph shall be
extended to one month if the deceased's relative or the testamentary
or court-appointed guardian has lost his or her capacity.
Article 267
The Guardianship Judge shall order the establishment of a legal document
outlining the rightful heirs and take all measures necessary to preserve
the minor's personal rights and financial interests.
Article 268
After consultation with the family council if necessary, the Guardianship
Judge shall fix the expenses and compensation required for the management
of the ward's estate.
Article 269
In the event the legal representative wishes to engage in a transaction
that results in a conflict of interest between himself, his wife, or
one of his ascendants or descendants on the one hand, and the wards'
interests on the other, he shall petition the court, which may authorize
the transaction and appoint an ad hoc representative for the ward, who
will conclude the requisite agreement and strive to preserve the ward's
interests.
Article 270
In accordance with generally applicable rules, and after he or she has
not responded to a formal notice within the prescribed time limit, the
testamentary or court-appointed guardian may be liable to a fine, and
his or her assets subjected to attachment or receivership if he or she
does not observe the provisions of preceding Article 256 or refuses
to present the financial statements or to transfer any of the ward's
property still in his or her possession.
In the event the testamentary or court-appointed guardian
fails in his or her mission or becomes incapable of performing it, or
in the existence of one the impediments cited in preceding Article 247,
the court may, after hearing his or her explanation, discharge him or
her of his duties or dismiss him or her, either at its own initiative,
or at the request of the Public Prosecutor's Office or the concerned
person(s).
Article 271
The testamentary or court-appointed guardian may not perform any of
the following acts unless he has obtained authorization from the Guardianship
Judge:
1. Sell any of the ward's immovable or movable property whose value
exceeds 10,000 dirhams or perform any transaction that creates in rem
rights on the property;
2. Contribute a portion of the ward's money to a civil or business firm
or invest it in a
business venture or speculation;
3. Waive a right or a claim, opt for reconciliation, or accept an arbitrated
settlement on the ward's property;
4. Enter into leases whose expiration extends beyond the end of the
guardianship;
5. Accept or reject donations encumbered by a condition or a right;
6. Pay debts for which no binding judicial decision has been issued;
7. Pay from the ward's assets any maintenance incumbent on the ward
unless it has been ordered by a binding judicial decision.
Any decision issued by the judge that authorizes the performance of
any of the above shall be duly justified.
Article 272
The sale of movable property susceptible to depreciation and whose value
exceeds 5,000 dirhams does not require authorization, and the same applies
to immovable or movable property whose value does not exceed 5,000 dirhams,
providing that the sale is not used as a means to evade judicial oversight.
Article 273
The preceding provisions shall not apply if the price of movable property
has been established in an official decision and the sale has been closed
at this predetermined price.
Article 274
The authorized sale of movable or immovable property shall be concluded
in accordance with the procedures provided for in the Civil Procedure
Code.
Article 275
Division of property owned jointly by the ward and a third party shall
be concluded by submitting a proposal to the court for approval, which
shall be granted after the court has ascertained by expert appraisal
that such division is not inequitable to the ward.
Article 276
The decisions that are issued by the Guardianship Judge in accordance
with Articles 226, 240, 268, and 271 are open to appeal.
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BOOK FIVE: OF WILLS (Not translated)
BOOK SIX: OF INHERITANCE (Not translated)
BOOK SEVEN: OF INTERIM
AND FINAL PROVISIONS
Article 396
The deadlines cited in the present code are inclusive.
If the last day of the deadline is a holiday, the deadline is extended
to the first working day.
Article 397
Shall be abrogated any provisions that are contrary to, or repetitious
of, the provisions in the present code, notably the following:
- The Sherifyan Dahir (Royal Edict) 1.57.343, issued on 28 Rabii II
A.H 1377
(corresponding to November 22, 1957) by virtue of which are applied,
throughout the
Kingdom of Morocco, the provisions of Books I and II addressing, respectively,
marriage, and its dissolution, as they have been completed and modified,
as well as their implementing texts;
- The Sherifyan Dahir (Royal Edict) 1.57.379, issued on 25 Jumada I
A.H 1377
(corresponding to December 18, 1957) by virtue of which are applied,
throughout the
Kingdom of Morocco, the provisions of Book III addressing birth and
its effects;
- The Sherifyan Dahir (Royal Edict), 1.58.019 issued on 4 Rajab A.H
1377 (corresponding to January 25, 1958) by virtue of which are applied,
throughout the Kingdom of Morocco, the provisions of Book IV, addressing
capacity and legal representation;
- The Sherifyan Dahir (Royal Edict) 1.58.037, issued on 30 Rajab A.H
1377 (corresponding to February 20, 1958) by virtue of which are applied,
throughout the Kingdom of Morocco, the provisions of Book V, addressing
wills;
- The Sherifyan Dahir (Royal Edict) 1.58.112, issued on 13 Ramadan A.H
1377
(corresponding to April 3, 1958) by virtue of which are applied, throughout
the Kingdom of Morocco, the provisions of Book VI, addressing inheritance.
However, the provisions cited in the aforementioned Sherifyan Dahirs
(Royal Edicts) which are referred to in the legislative and regulatory
texts in effect shall be replaced by the corresponding provisions in
the present code.
Article 398
Procedural measures taken in Personal Status cases shall be valid until
the date this present code comes into effect.
Article 399
Decisions issued prior to the entry into effect of the present code
shall remain subject to the provisions cited in the Sherifyan Dahirs
(Royal Edicts) referred to in preceding Article 397, notably as concerns
appeals and their deadlines.
Article 400
For all issues not addressed by a text in the present code, reference
may be made to the Malikite School of Jurisprudence and to ijtihad (juridical
reasoning) which strive to fulfil and enhance Islamic values, notably
justice, equality and amicable social relations.
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