The asaba heirs through another are: 1) the daughter, in the presence of a son; 2) the daughter of a son in infinitum, in the presence of a son of a son in infinitum, when he is at the same degree as her, or at a lower degree and unless she inherits otherwise; 3) full sisters, in the presence of full brothers, and consanguine si…
Family Code (Moudawana)
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The asaba heirs with another are the full or consanguine sisters, in the presence of a daughter or a daughter of a son in infinitum; they receive the remainder of the estate after deduction of the Fardh shares. In this case, full sisters are assimilated to full brothers and consanguine sisters to consanguine brothers; they are s…
When the father or the grandfather is in concurrence with the daughter or the daughter of a son in infinitum, he is entitled to one-sixth of the estate as a Fardh heir and to what remains thereof as an asib heir.
1) When the paternal grandfather is in the presence only of full brothers and/or full sisters, or when he is in concurrence only with consanguine brothers and/or consanguine sisters, he is entitled to the larger of the following two shares: one-third of the estate or the share devolving to him after division with the brothers an…
Eviction consists in the total or partial exclusion of one heir by another.
There are two kinds of eviction: 1) partial eviction, which reduces the inheritance share by bringing it to a lower share; 2) total eviction, which excludes from the succession. - 101 -
Total eviction cannot affect the following six heirs: the son, the daughter, the father, the mother, the husband and the wife.
Total eviction occurs in the following cases: 1) the son's son is evicted by the son only, and the nearest of the grandsons evicts the more distant grandsons; 2) the son's daughter is evicted by the son or by two daughters, unless she is in the presence of a son's son of the same degree as her or of a lower degree than hers who…
Partial eviction occurs in the following cases: 1) the mother: her Fardh share is reduced from one third to one sixth by the son, the son's son, the daughter, the son's daughter, and also by two or more brothers and sisters, whether full, consanguine or uterine, heirs or evicted; 2) the husband: the son, the son's son, the daugh…
The mouâdda case When there are, together with the full brothers and sisters, consanguine brothers and sisters, the former make the ancestor count together with the - 103 - latter in order to avoid the ancestor receiving too large a share of the succession. Then, if in the group of full brothers and sisters there are more than o…
The el-akdariya and el-gharra case In concurrence with the ancestor, the sister does not inherit as an heir to Fardh, except in the el-akdariya case. This case presupposes the simultaneous presence of the husband, the full or consanguine sister, an ancestor and the mother. The ancestor's share is combined with the Fardh of the s…
The el-malikiya case When there are present: the ancestor, the husband, the mother or the grandmother, one or more consanguine brothers and two or more uterine brothers and sisters, the husband receives one half, the mother one sixth and the ancestor the remainder of the succession. The uterine brothers and sisters are entitled to nothing, because the ancestor evicts them; likewise, the consanguine brother receives nothing.
The chibhou-el-malikiya case (quasi el-malikiya) When the ancestor comes to the succession with the husband, the mother or the grandmother, a full brother and two or more uterine brothers and sisters, the ancestor takes what remains after deduction of the Fardh shares, with the exception of the brothers and sisters because of their eviction by the ancestor.
The el-kharqû case. - 104 - When there are present: the mother, the ancestor and a full or consanguine sister, the mother receives one third, and the remainder is divided between the ancestor and the sister, according to the rule that attributes to the male heir double the share of the female heir.
The el-mouchtaraka case The brother receives the same share as that of the sister in the el-mouchtaraka case. This case presupposes the presence of the husband, the mother or the grandmother, two or more uterine brothers and sisters and one or more full brothers, the uterine brothers and sisters and the full brothers and sisters divide the one third on an equal basis, per head, because they are all born of the same mother.
The case el-gharâwyn. Where those present are: the wife and the father and mother of the de cujus, the wife is entitled to the quarter, the mother to the third of what remains of the estate, that is the quarter, and the father receives the remainder. Where the husband is present with the father and the mother of the deceased, he receives the half and the mother the third of the remainder, that is the sixth, and the rest goes to the father.
The case el-moubâhala. Where those present are: the husband, the mother and a germane or consanguine sister, the husband receives the half, the sister the half and the mother the third. The denominator is six and is raised to eight: the husband receives 3/8, the sister 3/8 and the mother 2/8.
The case el-minbariya. Where those present are: the wife, two daughters, the father and the mother, the denominator of their Fardh shares is twenty-four, it is raised to twenty-seven. The two daughters receive the two-thirds, i.e. 16/27, the father and the mother the third, i.e. 8/27, and the wife the eighth, i.e. 3/27, so that her Fardh share of the eighth passes to the ninth. - 105 - TITLE VIII: ON THE OBLIGATORY LEGACY (WASSIYA WAJIBA)
Where a person dies leaving grandchildren descended from a son or a daughter predeceased, or deceased at the same time as he, those grandchildren shall benefit, within the limit of the available third of the estate, from an obligatory legacy, according to the distribution and in accordance with the conditions set out in the Articles hereinafter.
The obligatory legacy allocated to the grandchildren referred to in the preceding Article is equal to the share of the estate which their father or mother would have received from his or her ascendant had he or she survived him; however, the third of the estate may not be exceeded.
The aforesaid grandchildren are not entitled to the obligatory legacy where they inherit from the ascendant of their father or mother, whether it be the grandfather or the grandmother, nor in the event that the latter has made a bequest in their favour or has given, gratuitously, during his lifetime, property of a value equal to…
Are entitled to the obligatory legacy: the children of a son, the children of a daughter and the children of the son's son to infinity, whatever their number, the male heir receiving a share double that of the female heir. In this case, the ascendant excludes his descendant but not the descendant of another. Each descendant takes only the share of his ascendant. - 106 - TITLE IX: ON THE LIQUIDATION OF THE ESTATE
The court may, where appropriate, take all necessary measures such as the payment of the funeral expenses of the deceased, within the limits of propriety, and the urgent procedures necessary for the preservation of the estate. It may in particular order the affixing of seals, the consignment of any sum of money, banknotes and objects of value.
The judge in charge of guardianships shall order, of his own motion, that these procedures be followed where it appears that among the heirs there is a minor not provided with a testamentary guardian; the same applies where one of the heirs is absent. Any interested person may apply to the court to initiate the procedures provid…
The court shall designate, for the liquidation of the estate, the person on whose choice the heirs have agreed. Failing agreement, and if the court considers the designation of a liquidator necessary, it shall impose on them the choice of the latter from among the heirs as far as possible, after having heard their observations and their reservations.
It is forbidden to any of the heirs to take the management of the estate assets in hand before liquidation, unless an imperative necessity constrains him thereto. He is likewise forbidden to collect the claims and to pay the debts of the estate without the authorization of the liquidator or of the court in the absence of the latter. - 107 -
It is for the liquidator, as soon as he is designated, to proceed to the inventory of all the property of the deceased through two adoul, in accordance with the inventory rules in force. He must likewise ascertain what claims or debts the estate comprises. The heirs must inform the liquidator of all that they know concerning the…
The legal representative shall accompany the liquidator of the estate during the accomplishment of the procedures with which he is charged by virtue of the provisions of Article 377 and following. He shall likewise accompany the person designated by the judge in charge of guardianships for the execution of the conservatory measures, the lifting of seals or the inventory of the estate.
There may be one or more liquidators. The rules governing mandate are applicable to the liquidator within the limit of what is stated in the decision of his designation.
The liquidator may refuse the mission entrusted to him or renounce it subsequently, according to the rules of mandate. The court may likewise substitute a new liquidator for the former, either of its own motion or at the request of one of the interested parties, where grounds justifying that decision exist.
The mission of the liquidator is fixed in the decision of his appointment. - 108 -
The appointment decision sets a time limit for the liquidator to present the result of the inventory of the succession.
It is for the liquidator to request fair remuneration for the performance of his mission.
The costs of liquidation are borne by the succession.
At the expiry of the time limit granted to him, the liquidator must present a detailed statement of all movable and immovable property left by the deceased. The liquidator must mention on this statement the rights and debts that he has identified, by means of documents and registers, as well as those of which he has become aware…
After examination of the inventory by the court, the succession is liquidated under its supervision.
During the liquidation of the succession, the liquidator must perform the necessary acts of management. He must also represent the succession in judicial proceedings and collect the succession claims that have fallen due. The liquidator, even if he is not remunerated, incurs the liability of a salaried agent. The judge responsible for guardianship may require the liquidator to present periodically the accounts of his management. - 109 -
To evaluate the succession assets, the liquidator calls upon experts or any person having special skills for that purpose.
After requesting permission from the judge responsible for guardianship or from the court and after the approval of the heirs, the liquidator proceeds with the payment of the succession debts that are due. As for disputed debts, they are settled only after a final ruling has been made on them. The partition of the existing asset…
In the event of insolvency or presumed insolvency of the succession, the liquidator must suspend the payment of any debt, even if it is not the subject of a dispute, until all the disputes relating to the liabilities of the succession have been definitively settled.
The liquidator settles the debts of the succession by means of the claims he recovers, the sums of money it comprises and the proceeds of the sale of movable property. In the event of insufficiency, recourse shall be had to the proceeds of the sale of immovable property up to the amount of the debts remaining due. The movable an…
After settlement of the succession debts in the order provided for in Article 322, the testamentary instrument is delivered by the liquidator of the - 110 - succession to the person empowered to execute the testament in accordance with Article 298. TITLE X: ON THE DELIVERY AND PARTITION OF THE SUCCESSION
After discharge of the succession charges, the heirs enter into possession of what remains of the succession, each according to his legal share. As soon as the inventory of the succession is completed, the heirs may request, on the basis of the account, to enter into possession of the objects and sums of money that are not indis…
Any heir may obtain from the two adoul a copy of the succession instrument (Iratha) and a copy of the succession inventory indicating his share and determining what each of the heirs receives from the assets of the succession.
Any person entitled to a share in the succession as an heir by Fardh and/or âsib or as a legatee has the right to demand the setting apart of his share in accordance with the law. - 111 - BOOK VII: TRANSITIONAL AND FINAL PROVISIONS
The time limits provided for by this Code are clear time limits. If the last day is a public holiday, the time limit is extended to the first working day.
All provisions contrary to this Code or relating to the same subject matter are repealed, in particular the provisions of the following dahirs: - dahir No. 1-57-343 of 28 rabii II 1377 (22 novembre 1957) implementing, throughout the territory of the Kingdom, the provisions of Books I and II relating to marriage and its dissoluti…
The procedural acts carried out in personal status cases before the entry into force of this Code remain valid. - 112 -
Decisions issued before the date of entry into force of this Code remain subject, with regard to appeals and their time limits, to the provisions provided for in the dahirs referred to in Article 397 above.
For all matters not expressly provided for in this Code, reference shall be made to the prescriptions of the Malekite Rite and/or to the conclusions of jurisprudential effort (Ijtihad), in order to give concrete expression to the values of justice, equality and harmonious coexistence in common life which Islam advocates. 0229041…