The main contents of the Family Code revision propositions were presented to the representatives of national and international media at a meeting in Rabat Tuesday, as instructed by King Mohammed VI during the working meeting he chaired on Monday at the Royal Palace in Casablanca, on the Family Code revision.
Head of Government Aziz Akhannouch stressed that this meeting with the media is meant to inform them and, through them, inform the public opinion of the content of the main amendments proposed for a substantial revision of the Family Code.
Akhannouch recalled that the King has given his instructions and clear-sighted guidelines concerning the principles and objectives that should guide the revision of the Family Code, assuring that the Sovereign’s expectations in this area would be achieved as soon as possible, in the context of the draft revision, with a view to submitting it to Parliament for adoption.
The meeting was marked by presentations by the Minister of Justice Abdellatif Ouahbi, who outlined the achievements made in revising the Family Code, and Minister of Endowments and Islamic Affairs, Ahmed Toufiq who presented the data relating to the legal opinion submitted by the Supreme Council of Ulema.
Ahmed Taoufik explained that the Fatwa Commission had responded favorably to ten of the legal issues relating to the Family Code, namely the age of marriage, the presence of two Muslim witnesses, joint legal representation, consideration of a wife’s household work as a contribution to the husband’s assets, the obligation, by deed, of the Nafaqa (alimony) for the wife, the lifetime right to housing for the surviving husband/spouse, the statement of both spouses’ debt in relation to the assets acquired, the maintenance of custody in the event of the wife’s remarriage, the Mout’â (compensation) for the woman requesting divorce, and equality in the right to a will for the grandchildren of sons and daughters alike ad infinitum.
The Minister also mentioned three questions to which the Commission had provided alternative solutions, in line with Sharia rule, which meet the desired objective and should be retained, namely the parentage of children born of adultery, the will for an heir if not accepted by other heirs, and the abrogation of Taâsib (male succession only in certain cases) in the event that only daughters inherit without sons.
He also cited two questions to which the Commission had presented two alternative solutions in line with the Sharia and serving the desired objective, on which the Sovereign will decide in order to guarantee the Maslaha (Interest), namely inheritance between spouses of different religions and inheritance between the person providing Kafala and the person subject to Kafala. In addition, he mentioned a question on which the Commission’s opinion can only be overtaken by a decision of the Sovereign in view of the Maslaha, namely the inclusion of the condition of acceptance by the first wife of polygamy, as well as article 400 stipulating recourse to the Malekite rite as a reference.
He emphasized that the scope of Ijtihad is limited to subjects for which there is no Quranic or Sunnah text and which are not the subject of consensus, adding that Ijtihad for the Kingdom’s Ulema is based on consideration of the “absolute Maslaha” and respect first and foremost for the Malikite rite.
Justice Minister Ouahbi, on his part, outlined the key achievements reached during the Family Code revision, and listed some of the main points adopted on the basis of the proposals of the entity entrusted with the code revision and on the opinion of the Supreme Council of Ulemas. Among these points, the minister particularly mentioned the possibility of documenting engagements and the consideration of the marriage certificate as the sole proof of marriage as a general rule, while establishing exceptional cases for admitting the action of recognizing marriage, as well as strengthening guarantees for the marriage of persons with disabilities by revising the formal and administrative procedures required for establishing the marriage certificate, as well as the possibility for Moroccan expatriates to register their marriage without the presence of two Muslim witnesses, if deemed impossible.
He also mentioned the legal marriage age set at 18 (as per the Gregorian calendar), with an exception whereby the legal majority is set at 17 years old, subject to a series of conditions that practically keep it within the “exception” circle.
AS to polygamy, he explained the obligation to obtain the wife’s opinion during the documentation of the marriage certificate regarding whether the husband commits to renouncing polygamy or not, and to mention this in the certificate. In the absence of this condition in the marriage certificate, the “exceptional objective justification” for polygamy is limited to cases of infertility of the first wife or illness that prevents marital relations, or other cases left to the judge’s discretion based on well-defined legal criteria deemed equally objective and exceptional.
The Justice Minister also explained several aspects of divorce (consensual divorce without judicial intervention, divorce by discord, repudiation cases…) and the new framework for managing assets acquired during the marital relationship, valuing the wife’s work within the household as a contribution to the development of assets acquired during the marriage.
Regarding child custody, the revision considers the custody as a shared right between both spouses during the marriage, with the possibility of extending it, if agreed, after the breakdown of the relationship, and strengthening the child’s right to housing under guardianship, in addition to establishing new rules governing the child’s visitation or relocation. Besides, it preserves the divorced mother’s right to custody of her children, even in case of remarriage; provides for the establishment of reference standards for estimating Nafaqa (alimony and child support), along with procedural mechanisms to expedite the notification and execution of corresponding judgments, and for the determination of the legal procedures the court must follow to grant emancipation to a minor, strengthen the legal protection of their assets, and subject the actions of their legal, testamentary, or appointed guardians to judicial control.
The revision also guarantees the right of the husband or wife to retain the marital home in the event of the spouse’s death, under the conditions set by law.
The Justice Minister also noted the adoption of the proposal from the Supreme Council of Ulemas regarding the “inheritance of daughters,” recommending that anyone may, during their lifetime, donate part of their assets to heirs, replacing derivative possession with actual possession, and the opening the possibility of wills (Wassiya) and donations (Hiba) for both spouses in the case of differing religions.
Ouahbi also noted that since this is a profound revision of the Family Code, a formulation will be adopted with modern expressions, replacing certain terms that have become obsolete in our legal and judicial system.
He then explained the general proposals aimed at supporting this reform, such as mobilizing qualified and sufficient human resources, including judges and executives, to manage family matters; reviewing procedures and measures related to family law, while establishing a practical guide and reference for the Family Code; facilitating access to family justice by creating a “one-stop shop” in family courts; raising awareness among future spouses about the rights and obligations derived from marriage, while adopting a public policy to support this issue; and studying the possibility of creating a national registry to record marriage and divorce certificates.
Ouahbi also emphasized that, in supervising all stages of this reform, the King ensured it was imbued with the virtues of participation and ownership, establishing a constructive framework that integrates the contributions of all, each from their own position, to promote the objectives of renewal, development, and Ijtihad, as expressed by the Family Code during its drafting in 2004 and the favorable response it generated both nationally and internationally. This underscores the distinguished character of the reform methodology adopted by the Kingdom, based on consistency, gradualism, capitalization, and moderation of its religious reference framework, as well as the capacity of Ijtihad tools to reconcile the objectives of Sharia with the progress made in terms of rights and freedoms.