The reciprocal rights and duties between spouses are as follows: 1) legal cohabitation, which implies good conjugal relations, justice and equality of treatment between wives, in the case of polygamy, mutual purity and fidelity, virtue and the preservation of honour and lineage; - 26 - 2) the maintenance of good relations in com…
Family Code (Moudawana)
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When one of the spouses persists in failing to fulfil the obligations referred to in the preceding Article, the other party may claim the performance of the obligations incumbent upon them or have recourse to the procedure of discord provided for in Articles 94 to 97 below.
When one of the spouses abusively expels the other from the conjugal home, the public prosecutor's office shall intervene in order to return the expelled spouse immediately to the conjugal home, while taking the measures guaranteeing their safety and protection. SECTION II: - OF THE CHILDREN
The duties of parents towards their children are as follows: 1) to ensure their protection and to watch over their health from conception until the age of majority; 2) to establish and preserve their identity, in particular by name, nationality and registration in the civil status; 3) to guarantee filiation, custody and maintena…
Marriage produces effects on the close relatives of the spouses, such as the impediments to marriage due to alliance, to breastfeeding or to marriages prohibited on grounds of simultaneity. CHAPTER II: OF INVALID MARRIAGE AND ITS EFFECTS
An invalid marriage is either null or defective. SECTION I: - OF NULL MARRIAGE
A marriage is null: 1) when one of the elements referred to in Article 10 above is lacking; 2) when there exists between the spouses one of the impediments to marriage referred to in Articles 35 to 39 above; 3) when the consents of the two parties are not concordant.
The court shall pronounce the nullity of the marriage by virtue of the provisions of Article 57 above, as soon as it becomes aware thereof or upon the request of any concerned person. This marriage, after consummation, gives entitlement to the Sadaq and entails the obligation of the Istibrâ (the retirement of continence). If the…
A marriage is tainted with defect when, by virtue of Articles 60 and 61 below, one of the conditions of its validity is not fulfilled. A defective marriage may, as the case may be, be terminated before its consummation and validated after the latter, or terminated before and after consummation.
A marriage vitiated by defect is dissolved before its consummation; in that case, the woman is not entitled to the Sadaq where the legal conditions relating thereto are not fulfilled. Where the marriage has been consummated, the marriage is validated by payment of the Sadaq (dowry) of parity that the court determines according to the social milieu of each spouse.
A marriage vitiated by defect by reason of the act is dissolved before and after its consummation in the following cases: - where the marriage is concluded while one of the spouses is suffering from a disease deemed fatal, unless the sick spouse recovers after the marriage; - where the spouse aims to make lawful the resumption o…
Where consent to marriage is subject to a time limit or depends on a suspensive or resolutory condition, the provisions of Article 47 above shall apply.
The spouse who has been subjected to coercion or fraud that led him to accept the marriage, or to facts expressly stipulated as a condition - 30 - in the marriage deed, may request the dissolution of the marriage before or after its consummation within a maximum period of two months. This period runs from the day on which the co…
A marriage dissolved in accordance with the provisions of Articles 60 and 61 above produces no effect before its consummation and, after consummation, entails the effects of a valid marriage deed until the court pronounces its dissolution. TITLE VI: ADMINISTRATIVE PROCEDURES AND FORMALITIES REQUIRED FOR THE ESTABLISHMENT OF THE MARRIAGE DEED
I. - A file is constituted for the conclusion of the marriage and kept at the registry of the family justice section of the place where the act is established, composed of the following documents: 1) a special form of application for authorization to draw up the marriage deed, the form and content of which are fixed by order of…
Fraudulent maneuvers to obtain the authorization or the certificate of capacity referred to in paragraphs 5 and 6 of the preceding Article, or the fact of evading these formalities, expose their perpetrator and his accomplices to the sanctions provided for in Article 366 of the Penal Code, at the request of the injured party. Th…
The marriage deed must include: 1) mention of the judge's authorization, its number and date, as well as the serial number of the file containing the documents provided for the marriage and the court with which it is filed; 2) the surnames and first names of the two spouses, the domicile or place of residence of each of them, th…
The wording of the marriage deed is transcribed in the register kept for this purpose at the family justice section. An extract8 thereof is sent to the civil registrar of the place of birth of the spouses, accompanied by a certificate of delivery, within a period of 15 days running from the date of approval of the marriage deed…
Upon approval of the marriage deed by the judge, the original of the said deed is handed to the wife and a certified copy thereof is issued to the husband. 7 - Order of the Minister of Justice n° 270-04 of 12 hija 1424 (3 février 2004) supplementing the list of documents constituting the marriage deed file and its content; Bulle…
Recourse to the dissolution of marriage, by divorce under judicial supervision or by judicial divorce, should take place only exceptionally and taking into consideration the rule of the lesser evil, because this dissolution leads to the break-up of the family and causes harm to the children.
The dissolution of marriage results from the death of one of the spouses, from rescission, from divorce under judicial supervision, from judicial divorce or from divorce by compensation (Khol).
The dissolution of marriage produces the effects provided for in this Code from the date of: 1) the death of one of the spouses or of a judgment declaring the death; 2) the rescission of the marriage, the divorce under judicial supervision, the judicial divorce or the divorce by compensation (Khol).
Divorce may be expressed either verbally, in explicit terms, or in writing, or even by an unequivocal sign, if it concerns a person unable to express himself orally or in writing. - 35 - TITLE II: DEATH AND RESCISSION CHAPTER ONE: DEATH
Death and the date on which it occurred are established before the court by any admissible means. The court declares the death of the missing person in accordance with Article 327 et suivants of this Code.
If it appears, after the judgment declaring the death of a missing person, that he is still alive, the public prosecutor's office or any concerned person is required to ask the court to render a decision establishing that fact. This decision annuls the judgment declaring the death of the missing person with all its effects, except the remarriage of the missing person's wife, which remains valid if it has been consummated.
In the event of establishment of the actual date of death, different from that pronounced by the declaratory judgment, the public prosecutor's office or any concerned person is required to ask the court to render a judgment re-establishing that fact and declaring void the effects resulting from the erroneous date of death. The remarriage of the missing person's wife nevertheless remains valid. CHAPTER II: RESCISSION
The rescission of the marriage deed is pronounced by judgment, before or after its consummation, in the cases and in accordance with the conditions provided for in this Code. - 36 - TITLE III: DIVORCE UNDER JUDICIAL SUPERVISION
Divorce under judicial supervision is the dissolution of the marriage contract requested by the husband or by the wife, according to conditions specific to each of them, under the supervision of the courts and in accordance with the provisions of this Code.
Anyone wishing to divorce must ask the court for authorization to have the divorce recorded by two adoul authorized for this purpose within the jurisdiction of the court in which the marital domicile, the wife's domicile or her place of residence or the place where the marriage deed was concluded is situated, according to the aforementioned order.
The application for authorization to have the divorce deed recorded must contain the identity, profession and address of the spouses and the number of children, if any, their age, their state of health and their school situation. The document establishing the marriage is attached to the application, together with the evidence establishing the husband's financial situation and his financial burdens.
The court summons the spouses for an attempt at conciliation. If the husband personally receives the summons and does not appear, he is deemed to have waived his application. If the wife personally receives the summons and does not appear and does not communicate written observations, the court gives her formal notice, through t…
When both parties appear, the proceedings take place in closed session, including the hearing of witnesses and of any other person whom the court considers useful to hear. With a view to reconciling the spouses, the court may take all useful measures, including the appointment of two arbitrators or of the family council or of an…
If conciliation between the spouses proves impossible, the court shall fix an amount that the husband shall deposit with the registry of the court, within a period not exceeding thirty days, in order to discharge the rights due to the wife and to the children in respect of whom he has a duty of maintenance, as provided for in the two following Articles.
The rights due to the wife comprise: the remainder of the Sadaq, where applicable, the pension due for the waiting period (Idda) and the gift of consolation (Mout'â), which shall be assessed according to the duration of the marriage, the financial situation of the husband, the grounds for divorce and the degree of abuse establis…
The rights to maintenance due to the children shall be fixed in accordance with Articles 168 and 190 below, taking into account their living conditions and their school situation before the divorce. - 38 -
If the husband does not deposit the amount provided for in Article 83 above within the prescribed period, he shall be deemed to have renounced his intention to divorce. This situation shall be recorded by the court.
As soon as the required amount is deposited by the husband, the court shall authorize him to have the divorce deed drawn up by two adoul within the territorial jurisdiction of the same court. Upon approval by the judge of the document establishing the divorce, a copy thereof shall be transmitted to the court that authorized it.
After receiving the copy referred to in the preceding Article, the court shall issue a reasoned decision comprising the following: 1) the surname and first name of the spouses, their date and place of birth, the date and place of their marriage, their domicile or place of residence; 2) a summary of the allegations and claims of…
If the husband grants the right of option to divorce to the wife, she may exercise it by filing an application with the court, in accordance with the provisions of Articles 79 and 80 above. The court shall verify that the conditions of the right of option agreed upon by the spouses are met. It shall undertake the conciliation at…
No application for authorization to divorce made by a spouse in a state of advanced intoxication, under coercion or in the grip of anger causing him to lose self-control shall be admissible.
Divorce by oath in general or by oath of continence shall be null and void.
Divorce associated with a number expressed by word, by sign or in writing shall be equivalent to only one.
Divorce linked to a condition of doing or not doing something shall be null and void. - 40 - TITLE IV: JUDICIAL DIVORCE (TATLIQ) CHAPTER ONE: JUDICIAL DIVORCE AT THE REQUEST OF ONE OF THE SPOUSES ON THE GROUND OF DISCORD (CHIQAQ)
When both spouses or one of them ask the court to settle a dispute between them that risks leading to discord, the court shall undertake all attempts at conciliation in accordance with the provisions of Article 82 above.
The two arbitrators or those acting in their place shall investigate the causes of the dispute between the spouses and deploy all their possibilities to end it. In the event of conciliation of the spouses, the arbitrators shall draw up a report thereof in three copies signed jointly by them and by the spouses; these copies shall…
In the event of disagreement between the arbitrators on the content of the report or on the determination of each spouse's share of responsibility, or if they have not submitted that report within the time allotted to them, the court may conduct a supplementary inquiry by any means it deems appropriate.
In the event of the impossibility of conciliation and where discord persists, the court shall draw up a report thereof, pronounce the divorce and rule on the rights due in accordance with Articles 83, 84 and 85 above. To that end, the court shall take into account the responsibility of each of the spouses in the causes of the di…
The wife may apply for judicial divorce on one of the following grounds: 1) the husband's failure to comply with one of the conditions stipulated in the marriage deed; 2) the harm suffered; 3) the failure to provide maintenance; 4) the absence of the spouse; 5) a redhibitory defect in the spouse; 6) the oath of continence or abandonment. SECTION I: - FAILURE TO COMPLY WITH ONE OF THE CONDITIONS STIPULATED IN THE MARRIAGE DEED OR HARM
Any failure to comply with one of the conditions stipulated in the marriage contract is considered a prejudice justifying the request for judicial divorce. Any infamous act or conduct contrary to good morals, emanating from the husband and causing material or moral harm to the wife, placing her in the impossibility of maintaining the conjugal ties, is considered a prejudice justifying the request for judicial divorce.
The facts constituting the prejudice are established by any means of proof, including the testimony of witnesses heard by the court in chambers. - 42 - If the wife fails to prove the prejudice but persists in requesting judicial divorce, she may resort to the procedure provided for in matters of discord.