Author:
Publication: MEMRI
Date: November 7, 2003
In an October 10, 2003 speech to
members of the Moroccan parliament, King Muhammad VI introduced eleven
fundamental reforms in a new Family Law proposed in Morocco. The following
are excerpts from his speech: [1] Men and Women are Equal Before the Law
1- "[We should] adopt a modern form of wording instead of that which undermines
the dignity of women as human beings. Make husband and wife jointly responsible
for the family, in keeping with the words of my ancestor the Prophet Sidna
Muhammad (pbuH) who said that men and women were equal before the law,
and also with the saying: 'Only an honorable man will honor them (women);
and only an ignoble man will humble them.'
2- "Entitle the woman who has come
of age to guardianship as a right, if she so chooses or if it serves her
interest, in accordance with one of the interpretations of the Koranic
verse which stipulates that a woman shall not be forced to marry against
her free will: '.place not difficulties in the way of their (re-)marrying
their husbands if it is agreed between them in kindness.' A woman may,
of her own free will, entrust guardianship to her father or to a relative.
3- "Ensure equality between men
and women by setting the minimum age for marriage at 18 years for both
of them, in accordance with certain provisions of the Malikite rite. [2]
The judge may, however, lower the age for marriage in certain justifiable
cases. Also ensure equality between boys and girls placed in custody, by
allowing them to choose their custodian at the age of 15." Polygamy is
Almost Impossible
4- "Regarding polygamy, I have seen
to it that the true, tolerant aims of Islam are duly taken into account,
mainly with respect to justice. In this regard, Almighty Allah allowed
polygamy, but subject to compliance with strict conditions; He said: '.and
if you fear that you cannot do justice (to so many) then one (only).' "Then
the Almighty ruled out the possibility for man to do justice in this particular
case: He said: 'You will not be able to deal equally between (your) wives,
however much you wish (to do so).' He thus made polygamy almost impossible,
from the Islamic legal point of view. "Similarly, I have sought guidance
from the pristine wisdom of Islam which makes it legally possible for a
man to take a second wife, but only in circumstances beyond control. In
addition, strict conditions must be observed and a judge's permission secured.
Failure to allow for such exceptions by outlawing polygamy, may result
in men being tempted to engage in unlawful polygamy. "Hence, polygamy shall
be allowed solely in the following cases and under the legal conditions
below:
- "The judge shall not allow polygamy
unless he ascertains that the husband will treat his second wife and her
children on an equal footing with the first, that he will provide the same
living conditions for all, and that there is a clear and objective justification
for polygamy...
- "The woman has the right to impose
a condition in the marriage contract whereby her husband will refrain from
taking a second wife. In this connection, Omar Ibn Al-Khattab, may God
be pleased with him, is quoted as saying: 'Contracts are tantamount to
laws, for both parties.' If no such condition has been stipulated, the
judge shall summon the first wife to secure her consent. Similarly, the
second wife must be informed that her husband-to-be is already married.
Her consent must also be secured. The first wife shall have the right to
ask for divorce because of harm suffered." Simplifying Marriage for Moroccans
Living Abroad
5- "As a token of my special concern
for my dear subjects residing abroad, and in order to reduce the hassle
they face to get marriage contracts processed, I have decided that the
procedure shall be simplified. The marriage contract shall simply be drawn
up in the presence of two Muslim witnesses, in accordance with the procedures
in force in the country of residence, and shall then be registered with
the relevant Moroccan consular or judicial authorities. In this regard,
the Prophet (pbuH) is quoted as saying: 'Seek ease, not hardship.'" Equal
Divorce Rights for Men and Women
6- "Make divorce, defined as the
dissolution of marriage, a prerogative that can be exercised as much by
the husband as by the wife, in accordance with legal conditions set for
each party, and under judicial supervision. Thus, the husband's right to
resort to repudiation shall be limited by specific restrictions and conditions
designed to avoid misuse of this right. In this connection, the Prophet
(pbuH) is quoted as saying: 'The most hateful to God, of all lawful things,
is divorce.' "For this purpose, mechanisms for reconciliation and mediation,
through the family and the judge, shall be strengthened.
"Divorce is the prerogative of the
husband; the wife may also avail herself of this prerogative by using the
right of option (Tamleek). "Whatever the case, and before the divorce is
authorized, it shall be ascertained that the divorced woman gets all the
rights to which she is entitled.
"A new procedure for divorce has
been established, requiring the court's prior authorization. Divorce cannot
be duly registered until all monies owed to the wife and children have
been paid in full by the husband. Verbal repudiation, in exceptional cases,
shall not be considered valid.
7- "Expand the woman's right to
file for divorce if the husband fails to observe any of the conditions
in the marriage contract, or if he harms his wife through lack of financial
support, abstinence, violence, or any other wrongful deed. This provision
is in line with the general legal principle which advocates balance and
moderation. Its aim is to promote equality and fairness between husband
and wife.
"A provision has also been introduced
allowing divorce by mutual consent, under judicial supervision." Defending
Children's Rights
8- "Seek to further protect children's
rights by making the provisions of the relevant international agreements
ratified by Morocco, part of the Family Law. Children's rights with respect
to custody are also to be guaranteed by entrusting custody to the mother,
then the father, then the grandmother on the mother's side.
"Should this prove to be impossible,
the judge will entrust custody to the relative in the child's family who
is deemed most fit to assume that responsibility, keeping in mind the sole
interest of the child. "[The] requirement to provide suitable accommodation
for custody children shall be considered separately from other alimony
obligations. Alimony cases shall be treated swiftly, within a maximum period
of one month.
9- "Protect the child's rights to
acknowledgement of paternity in case the marriage has not been officially
registered for reasons beyond control. The court shall examine the evidence
put forth to prove parentage. "A 5-year period shall be allowed for, in
order to settle unresolved cases, so as to spare children in this situation
sufferings and deprivations." Clarification of Financial Rights
10- "In keeping with the principle
of Ijtihad [independent judgment in a legal or theological question], the
granddaughter and the grandson on the daughter's side, just like the son's
children, shall be granted the right to inherit from their grandfather,
as part of the compulsory legacy.
11- "Regarding the management, by
husband and wife, of the property acquired during marriage, and while confirming
the principle of separate estate for each one of them, the couple may agree,
in a document other than the marriage contract, on how to manage and invest
the assets acquired jointly during marriage. "In case of disagreement,
they shall resort to the judge who shall base his assessment on general
regulations of proof to determine the contribution of each of the spouses
in fructifying the family's assets." The New Family Law is Consistent with
Islamic Principles King Muhammad VI claimed in his speech that his goal
was to ensure that these reforms were consistent with the following principles:
- "In my capacity as Amir Al-Muminin
(Commander of the Believers), I cannot make licit what God has forbidden,
nor forbid what He has made lawful;
- "It is necessary to be mindful
of the tolerant aims of Islam, which advocates human dignity, equality
and harmonious relations, and also to rely on the cohesiveness of the Malikite
rite and on Ijtihad, thanks to which Islam is a suitable religion for all
times and places. The aim is to draw up a modern Family Law which is consistent
with the spirit of our glorious religion.
- "The Family Law should not be
considered as a legislation devised for women only, but rather as a code
for the family: father, mother, and children. The proposed legislation
is meant to free women from the injustices they endure, in addition to
protecting children's rights and safeguarding men's dignity. Would anyone
of you want to see his wife and children thrown out of their home and into
the street, or his daughter or sister treated brutally?... "As I am determined
to preserve the rights of my faithful subjects of Jewish faith, I have
seen to it that the new Family Law contains a provision which reaffirms
that they shall continue to be governed by the Hebraic Moroccan Family
Law.
"These provisions should not be
regarded as flawless, nor should they be perceived from a fanatic angle.
Instead, you should address them with realism and clear-sightedness, keeping
in mind that this is an Ijtihad effort which is suitable for Morocco at
this point in time, in its endeavors to achieve the development objective
it is pursuing in a wise, gradual and determined manner."
Strengthening Moroccan Democracy
"I am determined to carry on with
all substantive reforms, with the participation of all the forces that
count in the nation, particularly our young people, in order to instill
in them a sense of responsibility as citizens, and to involve them in the
shaping of a democratic nation, firmly committed to solidarity and development.
"In this respect, I should like to reaffirm my determination to ensure
that this year is devoted to consolidating the main pillars of our nation,
namely a stable family, a pioneering school system, and a community-based
authority dedicated to serving the public and to strengthening the foundations
and institutions of a strong democratic [s]tate."
