This law is named the Family Code. It is referred to hereinafter as the Code.
Family Code (Moudawana)
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The provisions of this Code apply: 1) to all Moroccans, even those holding another nationality; 2) to refugees, including stateless persons, in accordance with the Geneva Convention of 28 July 1951 relating to the Status of Refugees; 3) to any relationship between two persons where one of them is Moroccan; 4) to any relationship…
The public prosecutor acts as a principal party in all actions seeking the application of the provisions of this Code. - 13 - BOOK ONE: MARRIAGE TITLE ONE: BETROTHAL AND MARRIAGE
Marriage is a pact founded on mutual consent for the purpose of establishing a legal and lasting union between a man and a woman. Its purpose is life in mutual fidelity, purity and the founding of a stable family under the direction of both spouses, in accordance with the provisions of this Code. CHAPTER ONE: BETROTHAL
Betrothal is a mutual promise of marriage between a man and a woman. Betrothal is effected when both parties express, by any commonly accepted means, their mutual promise to contract marriage. This is the case with the recitation of the Fatiha and practices accepted by usage and custom in the matter of exchange of gifts.
The two parties are considered to be in the period of betrothal until the conclusion of the marriage deed is duly established. Either party may break the betrothal.
Breaking the betrothal does not give rise to compensation. However, if one of the two parties commits an act causing harm to the other, the injured party may claim compensation.
Each of the two betrothed persons may request the restitution of the gifts offered, unless the breaking of the betrothal is attributable to that party. The gifts are returned in kind or according to their real value. - 14 -
When the Sadaq (the dower) has been paid in whole or in part by the fiancé, and the betrothal has been broken or one of the betrothed persons has died, the fiancé or his heirs may request restitution of the property handed over or, failing that, its equivalent or its value on the day it was handed over. If the fiancée refuses to…
Marriage is concluded by the mutual consent (Ijab and Quaboul) of the two contracting parties, expressed in established terms or by any expression accepted by the language or usage. For any person unable to express himself orally, consent validly results from a writing if the person concerned can write, otherwise from a sign understandable by the other party and by the two adoul.
The consent of both parties must be: 1) expressed verbally, if possible, otherwise in writing or by any understandable sign; 2) concordant and expressed at the same session; 3) decisive and not subject to a time limit or to a suspensive or resolutory condition.
The provisions of Articles 63 and 66 below apply to a marriage deed vitiated by constraint or by fraud.
The conclusion of marriage is subject to the following conditions: - 15 - 1) the capacity of the husband and the wife; 2) no agreement on the suppression of the Sadaq (the dower); 3) the presence of the matrimonial guardian (Wali), where he is required by this Code; 4) the two adoul establishing the consent of both spouses and recording it; 5) the absence of legal impediments.
Moroccans residing abroad may contract marriage according to the local administrative formalities of the country of residence, provided that the conditions of consent, capacity and, where applicable, the presence of the matrimonial guardian (Wali) are met, and that there are no legal impediments or agreement to suppress the Sadaq (the dower), in the presence of two Muslim witnesses and subject to the provisions of Article 21 below.
Moroccans who have contracted marriage in accordance with the local legislation of the country of residence must deposit a copy of the marriage deed, within a period of three months running from the date of its conclusion, with the Moroccan consular services of the place where the deed was established. In the absence of consular…
The document constituting the marriage deed is the means of proof of the said marriage. Where compelling reasons have prevented the establishment of the marriage deed document in due time, the court shall admit, - 16 - in an action for recognition of marriage, all means of proof as well as recourse to expert appraisal. The court…
Marriage is concluded in the presence of the contracting parties. However, a power of attorney may be given for this purpose, on authorization of the family judge responsible for marriage, according to the following conditions: 1) the existence of particular circumstances preventing the principal from concluding the marriage in…
The judge may not personally undertake to conclude, either for himself or for his ascendants or descendants, the marriage of a person under his guardianship. TITLE II: CAPACITY, MATRIMONIAL GUARDIANSHIP AND SADAQ (DOWRY) CHAPTER ONE: CAPACITY AND MATRIMONIAL GUARDIANSHIP
Matrimonial capacity is acquired, for boys and girls enjoying their mental faculties, at eighteen completed Gregorian years.
The family judge responsible for marriage may authorize the marriage of a boy or girl before the age of matrimonial capacity provided for in Article 19 above, by reasoned decision specifying the interest and the grounds justifying such marriage. He shall first hear the parents of the minor or his legal representative. He shall l…
The marriage of a minor is subject to the approval of his legal representative. The approval of the legal representative is established by his signature affixed, together with that of the minor, to the marriage authorization application and by his presence at the drawing up of the marriage deed. Where the legal representative of the minor refuses to grant his approval, the family judge responsible for marriage shall rule on the matter. - 18 -
Spouses married in accordance with the provisions of Article 20 above acquire civil capacity to bring legal proceedings with respect to all rights and obligations arising from the effects of marriage. The court may, at the request of one of the spouses or his legal representative, determine the financial charges incumbent on the spouse concerned and the modalities of their payment.
The family judge responsible for marriage shall authorize the marriage of a mentally disabled person, whether male or female, upon production of a report established by one or more medical experts on the state of the disability. The judge shall communicate the report to the other party and record it in a procès-verbal. The other…
Matrimonial guardianship (wilaya) is a right belonging to the woman. A woman of age exercises this right according to her choice and her interest.
A woman of age may contract her own marriage or delegate her father or one of her relatives for that purpose. CHAPTER II: SADAQ (DOWRY)
The Sadaq (dowry) consists of any property given by the husband to his wife, implying on his part the firm will to create a household and to live in bonds of mutual affection. The legal foundation of the Sadaq consists in its moral and symbolic value and not in its material value. - 19 -
The Sadaq is fixed at the time of drawing up the marriage deed. Failing that, its fixing is delegated to the spouses. If the spouses, after consummation of the marriage, have not agreed on the amount of the Sadaq, the court shall proceed to fix it, taking into account the social environment of each of the spouses.
Anything that may legally be the object of an obligation may serve as Sadaq. It is legally recommended to moderate the amount of the Sadaq.
The Sadaq consented by the husband to the wife becomes her property; she has the free disposal thereof and the husband may not require from her, in return, any contribution whatsoever in furniture or otherwise.
It may be agreed to pay the whole or a part of the Sadaq in advance or on a deferred basis.
The Sadaq must be paid at the agreed due date. The wife may demand payment of the due portion of the Sadaq before consummation of the marriage. Where consummation of the marriage has taken place before payment of the Sadaq, the latter becomes a debt incumbent on the husband.
The entirety of the Sadaq is acquired to the wife in the event of consummation of the marriage or of the death of the husband before such consummation. In the event of divorce under judicial control before consummation of the marriage, the wife is entitled to half of the fixed Sadaq. Where the marriage is not consummated, the wi…
In the event of divergence on the payment of the due portion of the Sadaq, credence is given to the declarations of the wife if the dispute occurs before consummation of the marriage and to those of the husband in the contrary case. In the event of divergence between the spouses on the payment of the deferred portion of the Sadaq, proof of payment shall be incumbent on the husband. The Sadaq is not subject to prescription.
All that the wife brings to the household by way of Jihaz or Chouar (marriage trousseau and furniture) belongs to her. In the event of dispute over the ownership of other objects, it shall be ruled according to the general rules of evidence. However, in the absence of proof, the statements of the husband, supported by oath, shal…
Impediments to marriage are of two kinds: perpetual and temporary. CHAPTER ONE: PERPETUAL IMPEDIMENTS
Prohibited, on grounds of kinship, is the marriage of a man with his ascendants and descendants, the descendants of his ascendants at the first degree, the descendants at the first degree of each ascendant in infinitum.
Prohibited, on grounds of kinship by affinity, is the marriage of a man with the ascendants of his wife from the conclusion of the marriage and with the descendants of the wife, provided that the marriage with the mother has been consummated, at all degrees, with the former wives of ascendants and descendants from the conclusion of the marriage.
Breastfeeding creates the same impediments as filiation and kinship by marriage. Only the breastfed child is considered the child of the wet nurse and of her husband, to the exclusion of the child's brothers and sisters. Breastfeeding constitutes an impediment to marriage only if it actually took place during the first two years before weaning. CHAPTER II: TEMPORARY IMPEDIMENTS
The following are prohibited as temporary impediments: 1) simultaneous marriage to two sisters or to a woman and her paternal or maternal aunt, by filiation or breastfeeding; - 22 - 2) having at the same time a number of wives greater than that legally authorized; 3) marriage in the case of divorce of the two spouses three succe…
Polygamy is prohibited when injustice is to be feared towards the wives. It is also prohibited when there exists a condition of the wife by virtue of which the husband undertakes not to add another wife to her.
The court shall not authorize polygamy in the following cases: - when its objective justification and exceptional character have not been established; - when the applicant does not have sufficient resources to provide for the needs of the two households and to ensure for them equitably maintenance, housing and the other requirements of life.
In the absence of a condition by which the husband undertakes to renounce polygamy, the latter must, if he intends to take another wife, submit to the court a request for authorization to that effect. The request must state the objective and exceptional grounds justifying polygamy and must be accompanied by a declaration on the applicant's material situation. - 23 -
The court summons, for the purpose of appearance, the wife to whom the husband intends to add a co-wife. If she personally acknowledges receipt of the summons but does not appear or refuses to receive it, the court sends her, through a court registry officer, a formal notice informing her that if she does not attend the hearing…
The proceedings take place in closed session in the presence of both parties. They shall be heard in order to attempt to find an arrangement, after investigation of the facts and presentation of the required information. The court may, by reasoned decision not subject to appeal, authorize polygamy if it is established that the g…
When it is established during the proceedings that continuation of the marital relationship is impossible and the wife to whom the husband intends to add a wife persists in requesting divorce, the court shall fix an amount corresponding to all the rights of the wife and of their children whom the husband is obliged to maintain.…
If the husband is authorized to take another wife, the marriage with her may be concluded only after she has been informed by the judge that the suitor is already married and has expressed her consent. The information and consent shall be recorded in an official report. TITLE IV: CONSENSUAL CONDITIONS FOR THE CONCLUSION OF MARRIAGE AND THEIR EFFECTS
All matrimonial contractual clauses are binding. However, those contrary to the conditions and purposes of marriage as well as to imperative rules of law are null, while the marriage certificate remains valid.
The conditions that secure a legitimate interest for the spouse who formulates them are valid and binding on the other spouse who has subscribed to them. In the event of circumstances or facts making the actual performance of the condition unbearable, the person who has bound himself thereto may ask the court to exempt him there…
Each of the two spouses has their own separate patrimony. However, the spouses may agree on the conditions of fructification and distribution of the property which they have acquired during their marriage. This agreement shall be the subject of a document separate from the marriage deed. The adoul shall inform both parties, at t…
The marriage deed, in which the elements required for its constitution are assembled, which satisfies the conditions of validity and is not tainted by any impediment, shall be deemed valid and shall produce all its effects in respect of the rights and duties which the law has instituted between the two spouses, the children and the relatives, as set out in this Code. SECTION I: - OF THE SPOUSES