Morocco, Kingdom of (& Western Sahara)


*Please note this is just a draft and all contents are still under revision.*


Legal Table
Legal Text

Legal System/History

Parts of Morocco and Western Sahara came under Portuguese, Spanish and French influence from 15th century. Morocco gained independence from France in 1956 and Spain relinquished authority over most Moroccan holdings during the same period. Status of Western Sahara remains unresolved pending UN-sponsored referendum.

Colonial legal system influenced development of Morocco’s legal system while shari’a courts continued to apply Maliki fiqh to matters of family law. Also local tribunals applying customary law. Following independence in 1956, a Code of Personal Status (al-Mudawwana) was issued, based on dominant Maliki doctrine, adopting some provisions from other schools and legislation in neighbouring countries. Major amendments made to MCPS in 1993.

School(s) of Fiqh

Maliki majority; also Christian and Jewish minorities.

Constitutional Status of Islam(ic Law)

Constitution adopted 10th March 1972; major revisions in 1992 and 1996. Article 6 declares Islam official state religion and guarantees freedom of worship for all citizens.

Court System

Four levels of courts; 27 sadad courts, 30 regional courts, 9 courts of appeal and Supreme Court in Rabat [figures as of late 1980s]. Sadad and regional courts divided into four sections: shari’a; rabbinical; civil, commercial and administrative; and penal. Sadad courts are courts of first instance for Muslim and Jewish personal law. Shari’a sections of regional courts also hear personal status cases on appeal.

Relevant Legislation

Code of Personal Status 1957-1958 (major amendments made by Law no. 1.93.347 1993)

Notable Features

Marriage Age: minimum marriage age is 18 years for males and 15 for females; judicial discretion for males under 18 if there is fear of immorality; compatibility of age in marriage is defined as wife’s right

Marriage Guardianship: no coercive guardianship; ward may take matter to court if her guardian refuses consent to her marriage; ward who has reached age of legal majority and has no father may contract her own marriage

Marriage Registration: obligatory

Polygamy: polygamy not to be permitted in case of fear of unequal treatment; requirement of notification of prospective and existing wives; woman who did not insert stipulation limiting husband’s right to marry polygamously in marriage contract and whose husband does so may seek judicial divorce on grounds of harm

Obedience/Maintenance: legislation specifies maintenance as one of wife’s rights, and obedience as one of husband’s rights

Talaq: talaq must be registered at court, normally in presence of wife; if talaq is found to have been exercised while wife is menstruating, judge shall oblige husband to revoke it; talaq uttered while intoxicated, under coercion, enraged, upon condition, by oath or with intention to coerce not effective; talaq to which a number is attached effective as single revocable only (except third of three)

Judicial Divorce: wife may seek judicial divorce on following grounds: husband’s non-maintenance; husband’s grave and incurable or long-term defect; harm caused by husband making cohabitation impossible (after reconciliation efforts); husband’s absence for over one year without valid reason; husband’s oath of abstinence if he does not comply with judicial decision allowing four month grace period; all judicial divorces irrevocable except divorce granted because of husband’s oath of abstinence or inability to maintain

Post-Divorce Maintenance/Financial Arrangements: divorcing husband obliged to pay compensation if talaq was on his part; qadi may award wife compensation for talaq without good reason, with no upper or lower limit of compensation specified

Child Custody and Guardianship: divorced mother has right of custody until puberty for sons and until marriage for daughters

Succession: introduction of obligatory bequest to favour grandchildren through predeceased sons (how low soever)

Notable Cases

 

Law/Case Reporting System

Law reporting in Bulletin Officiel.

International Conventions (with Relevant Reservations)

ICCPR – signature 1977, ratification 1979

CRC – signature 1990, ratification 1993 (with reservation to Art. 14 according children freedom of religion, "in view of the fact that Islam is the State religion.")

CEDAW – accession 1993 with declarations relating to Arts. 2 & 15(4) and reservations to Arts. 9(2), 16 & 29(1)

Legal History:

Spanish and Portuguese power in Morocco and the Western Sahara was in its ascendancy in the 15th century, with several coastal areas being the subject of rival claims. By the early 20th century, the British acknowledged Morocco as part of the French sphere of influence, with Morocco being divided between Spain and France in 1904. A French protectorate was established in 1912. Spanish Morocco faced fierce resistance and a revolt in 1920 nearly succeeded in driving the Spanish out, when a French and Spanish alliance re-established Spanish authority in 1926. Morocco gained independence from France in 1956 and Spain relinquished authority over most of its Moroccan holdings during the same period. The status of the Western Sahara remains unresolved, with contesting claims on the part of the Moroccan state and the Polisario Front (Popular Front for the Liberation of the Saquia el-Hamra and Rio de Oro) which proclaimed a government in exile of the Sahrawi Arab Democratic Republic (SADR) in February 1976. The region was divided between Morocco and Mauritania in April of that year, with Morocco taking over the remaining one-third of the territory soon after Mauritania succumbed to pressure from Polisario in 1979 and abandoned its claims. Preparations for a long-delayed UN-sponsored referendum on the future of the territory continue.

Under French and Spanish rule, the colonial legal systems influenced local developments outside of the sphere of family law. Shari’a courts continued to apply Maliki fiqh during the first half of the century (in addition to local tribunals applying customary law). Following independence in 1956, a Law Reform Commission was established in order to draft a code of personal status. A Code was passed into law within the next year, based on dominant Maliki doctrines as well as takhayyur, maslaha, and legislation from other Muslim countries (perhaps most importantly the Tunisian Code of Personal Status 1956). Article 82 of the Code directs that "[w]ith regard to anything not covered by this law, reference shall be made to the most appropriate or accepted opinion or prevailing practice of the school of Imam Malik". Major amendments to the Code’s provisions relating to marriage guardianship, polygamy, talaq and mut’a al-talaq were made in 1993.

Schools of Fiqh: The Maliki school is the predominant madhhab in Morocco. There are also Jewish and Christian minorities.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 10th March 1972, and has undergone major revisions in 1992 and 1996. Article 6 declares Islam the official state religion and guarantees freedom of worship for all citizens.

Court System: There are four levels of courts; 27 sadad courts, 30 regional courts, 9 courts of appeal and the Supreme Court in Rabat [figures as of late 1980s]. The sadad and regional courts are divided into four sections: shari’a; rabbinical; civil, commercial and administrative; and penal. Sadad courts are courts of first instance for Muslim and Jewish personal law. Shari’a sections of regional courts also hear all matters of Islamic law affecting Moroccan Muslims.

Notable Features: The minimum marriage age is 18 years for males and 15 for females. There is scope for judicial discretion for males under 18 if there is fear of immorality. Marriage of a minor below the age of majority (rushd) requires the guardian’s consent, and if the guardian refuses, the parties may take matter to court.

Compatibility of age in marriage is the sole right of the wife. The marriage guardian is not to contract the marriage of his ward unless she authorises it. The wali’s right of coercion (ijbar) under certain circumstances was revoked under the 1993 amendments to the Code. The ward may take the matter to court if her guardian refuses consent for her marriage, and if a ward of the age of majority has no father, she may choose either to appoint a wali of her choice or contract her own marriage.

The provisions relating to registration include the requirement of a notarised contract before two witnesses. Preliminaries include the filing of documents attesting to the identity, age, domicile, guardian’s name, husband’s personal status, and proof of dissolution for previously married women, as well as specification of the dower.

Polygamy is not permitted in case of fear of unequal treatment. There is a requirement of notification for the second wife, and the 1993 amendments to the Code also require notification of the existing wife. A woman who did not insert a stipulation restricting her husband’s right to marry polygamously in the marriage contract and whose husband does so may request a judicial divorce on grounds of harm. The Code specifies maintenance as one of the rights of the wife, and obedience as one of the rights of the husband.

Talaq must be registered in the presence of two male witnesses and, under the 1993 amendments, in the wife’s presence (unless she fails to appear at the summons), within the jurisdiction of the marital residence. If talaq is found to have been exercised while the wife is menstruating, the judge shall oblige the husband to revoke it. Talaq uttered while intoxicated, under coercion, enraged, upon condition, by oath or with intention to coerce is ineffective. Talaq to which a number is attached is effective as a single revocable repudiation (except third of three). The wife may seek a judicial divorce on the following grounds: husband’s non-maintenance; husband’s grave and incurable or long-term defect though such right is forfeit if the wife married in full knowledge of the defect or if it occurred after the contract and she implicitly or explicitly accepted it; such harm caused by the husband as makes cohabitation impossible (after reconciliation efforts); husband’s absence for over one year without valid reason; and husband’s oath of abstinence if he does not comply with a judicial decision allowing four months’ grace period. All judicial divorces are irrevocable except divorce granted because of the husband’s oath of abstinence or inability to maintain. Regulations relating to khul’ are based on classical law. The divorcing husband is obliged to pay compensation if the talaq was on his part. The 1993 amendments to the Code add to this that the qadi shall assess the injury sustained by the arbitrarily divorced wife in awarding compensation, with no upper or lower limits set to compensation awards. The divorced mother has right of custody until puberty for sons and until marriage for daughters.

Matters of testate and intestate succession are covered in Books V and VI of the Code of Personal Status, respectively. Obligatory bequests were introduced in favour of orphaned grandchildren by predeceased sons, how low soever.  

Notable Cases:

Law/Case Reporting System: Law reports are published in the Bulletin Officiel.

International Conventions (with Relevant Reservations): Morocco signed the ICCPR and ICESCR in 1977 and ratified both in 1979 without submitting any reservations.

Morocco signed the CRC in 1990 and ratified it in 1993, with a reservation to Article 14 according children freedom of religion, "in view of the fact that Islam is the State religion".

Morocco acceded to the CEDAW in 1993. Morocco submitted the following declarations: Morocco confirmed its willingness to apply the provisions of Article 2 on the elimination of discrimination provided that they do not "prejudice the constitutional requirement that regulates the rules of succession to the throne…(and) do not conflict with the provisions of the Islamic shari’a…"; Morocco also stated that, with respect to Article 15(4), "Morocco declares that it can only be bound by the provisions of this paragraph, in particular those relating to the right of women to choose their residence and domicile, to the extent that they are not incompatible with Articles 34 and 36 of the Moroccan Code of Personal Status". Morocco also submitted the following reservations: Morocco’s reservation relating to Article 15(4) states that "the Law of Moroccan Nationality permits a child to bear the nationality of its mother only in the cases where it is born to an unknown… or to a stateless father, when born in Morocco…"; Morocco also expressed reservations regarding Article 16 stating that equality in family law "is considered incompatible with the Islamic shari’a, which guarantees to each of the spouses rights and responsibilities within a framework of equilibrium and complementary in order to preserve the sacred bond of matrimony".

Background and Sources: El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; Blanc & Zeidguy, compiled by, Moudawana: Code de Statut Personnel et des Successions (Édition Synoptique Franco-Arabe), 1996; Mahmood, “Morocco” in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared, London, 1993; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Pearl, A Textbook on Muslim Personal Law, 2nd ed., London, 1987; Redden, “Morocco” in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Welchman, "Islamic Marriage and Divorce Laws of the Arab World by El Alami & Hinchcliffe," (book review) Yearbook of Islamic and Middle Eastern Law, vol. 3 (1996): 547-550.