The enactment of Law 70.03, known as the Family Code, marked a significant milestone in Moroccan legal history. This legislation aimed to revolutionise the protection of family rights in Morocco, emphasising the fundamental role of the family in building a modern and prosperous nation.
From the outset, the Family Code underscores the importance of family development and stability. It defines marriage as a covenant based on mutual consent to establish a legal and lasting union between a man and a woman. Its objective is to promote life in mutual fidelity, purity, and the creation of a stable family under the joint guidance of both spouses. Given the nature of marriage, both from a religious and legal perspective, divorce should only occur in exceptional circumstances with the intention of minimising harm, as the dissolution of marriage disrupts the family and can have detrimental consequences for children.
Rights Granted to Women in Divorce:
As previously discussed, women have several rights in the event of a divorce judgment. First, there is the right to consolation compensation (MOUT'A). The judge determines the amount based on the husband's financial situation and the degree of responsibility for the divorce that each party shares and also the duration of the marriage. However, a woman cannot claim this right if she initiates judicial divorce proceedings due to discord (Tatliq Chiqaq). In such cases, she can only seek damages if she can prove physical or moral harm. Furthermore, women may be entitled to housing expenses and Maintenance (NAFAQA) during the waiting period (IDDA), with the amounts determined by the judge.
The Waiting Period (IDDA):
The waiting period is the time that a divorced or widowed woman must observe before remarrying. It begins from the date of divorce under judicial control, judicial divorce, dissolution of marriage, or the husband's death. The waiting period for a pregnant divorced woman ends with the birth of the child or after a miscarriage. For women who are not pregnant, the waiting period is determined as follows:
• Three complete menstrual cycles for those who menstruate.
• Three months for those who have never had menstruation or have reached menopause. If menstruation occurs during the waiting period, it is extended by three menstrual cycles.
• Three months after a nine-month wait for those whose menstruation is delayed or who cannot distinguish menstruation from other bleeding.
However, a woman divorced before consummation of the marriage and who has not had legal relations with her husband is not subject to the waiting period, except in the case of the husband's death. Additionally, a non-pregnant widow must observe a waiting period of four months and ten clear days.
Child Custody Rights (HADANA)
The new Family Code places a strong emphasis on preserving and developing the family as the core of society, with particular attention to the interests of children. Judges are required to prioritise the child's well-being in all relevant decisions
Child custody is initially granted to the mother in the event of divorce, followed by the father and then the maternal grandmother. In the absence of these options, the court will decide, based on available evidence and in the best interest of the child, which close relative is most suitable to assume custody. The court also mandates providing suitable housing for the child, along with other responsibilities related to maintenance
Child custody lasts until the child reaches the legal age of 18 years regardless of gender. At the age of 15 years, in the event of a marital breakdown, the child can choose the parent who will assume custody.
Impact of Remarriage on Custody Rights:
The new Family Code has introduced significant changes regarding child custody in the case of maternal remarriage. The law allows the mother to retain custody in specific circumstances:
• If the child is under seven years of age or if separation from the mother causes the child harm.
• If the child is afflicted with an illness or disability that makes custody by someone other than the mother difficult.
• If the new spouse is a relative of the child with whom they have a legal impediment to marriage, or if they are the legal representative of the child.
• If she is the legal representative of the child.
However, the mother's remarriage relieves the father of housing expenses and custody compensation, but he remains responsible for child support.
Travelling with Children Abroad:
While the Family Code automatically grants custody to the mother in the event of divorce, she still has obligations towards the father, recognised as the legal guardian of the children. She must respect the father's rights, including visitation and exercising his parental rights, or risk losing them.
In general, the mother is prohibited from traveling abroad with the child without the father's consent. In case of the father's refusal, the mother can petition the court to authorize the trip, provided she demonstrates the temporary nature of the travel and ensures the child's return. Furthermore, it is forbidden for the woman to settle abroad with the child, or else she may lose custody.
Additionally, a change in residence by the woman who has custody of the child within Morocco does not lead to a loss of custody, except in cases of valid reasons determined by the court, considering the child's best interest, the father's circumstances, and the distance between the child and their legal representative.
Child custody can also be revoked by court decision at any time in cases of non-compliance with obligations by the mother, behaviour contrary to decency, or when the physical or moral health of the child is threatened. Nevertheless, the mother can always relinquish custody to the father by mutual agreement.
Child Support (NAFAQA):
The father is obliged to provide for the needs of his children until they reach the age of majority or until the age of twenty-five for those pursuing higher education. However, a daughter loses her right to maintenance if she has her own resources or if she marries when her maintenance falls under her husband's responsibility. In cases where the father is partially or entirely unable to provide support, and if the mother is financially stable, she must contribute to the child's maintenance proportionally to what the father cannot provide.
Maintenance includes food, clothing, medical care, education, and other essential needs. Determining child support takes into account the average income of the party concerned and the needs and customs of the beneficiary.
The court relies on the statements of both parties and may enlist experts to assess child support. Furthermore, the father must provide suitable housing for the child or pay rent as determined by the court. The father is also required to maintain the same standard of living that the child had before the divorce.
Enforcement of Child Support Obligations:
To ensure the proper enforcement of child support obligations, the Family Code allows the application of provisions on family abandonment to any person responsible for child support who fails to fulfil their obligations without valid reasons, for a maximum duration of one month.
If you would like to know more about the legal issues surrounding divorce in Morocco please click here.
Vincenzo Senatore , Senior Partner, London office, has been invited by the Catholic University of America, Columbus School of Law, Washington DC (CUA) and the University of Jagiellonian, in Kraków to join the US-CEE conference as a.
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