Morrocoan Marriage Code

Procedures
in Family Justice
Kingdom of Morocco
Ministry of Justice and Freedams
3
Procedures in Family Justice
Summary
Introduction ..................................................................................................................4
Marriage ........................................................................................................................5
Marriage of muslim converts and foreigners .............................................................8
Marriage and Divorce of moroccans residing abroad ............................................... 11
Recognition of marriage ............................................................................................. 16
Reconciliation in family cases ..................................................................................... 18
Divorce .........................................................................................................................20
Judiciary divorce .......................................................................................................... 22
Child custody ............................................................................................................... 25
Maintenance (Alimony) .............................................................................................. 27
Legal capacity and representation .............................................................................29
Kafala of abandoned children .................................................................................... 32
Family solidarity fund ..................................................................................................35
4
The Family Code which came into effect on
February 5, 2004 is the result of a participatory
process based on cooperation and consultation.
It constitutes the foundation of a society governed
by the criteria of responsibility which guarantee
the dignity of citizens and protect their rights.
The Family Code establishes a modern vision
consistent with the national and international
contexts, and also embodies in its manifestations
a social change project, based on the values
of justice, equality and dignity for all family
members, as well as on improving the legal
status of women and children.
Intended for all citizens, these procedures are
designed to support the efforts deployed by the
Ministry of Justice and Freedoms as part of its
strategy aimed at promoting the dissemination
of legal information and improving access to
family justice.
It also provides an educational support that
seeks to strengthen and consolidate awareness
and close communication, by providing answers
to key issues related to the implementation of
the Family Code, which can be presented as
follows :
Marriage; Marriage of Muslim Converts and
foreigners; Marriage and Divorce of Moroccans
Residing Abroad; Recognition of Marriage;
Reconciliation in Family Cases; Divorce; Judiciary
Divorce; Child Custody; Maintenance (Alimony);
Legal Capacity and Representation; Kafala of
Abandoned Children; Family Solidarity Fund.
Besides the English version, other editions of
these procedures are also available in Arabic,
Amazigh, French and Spanish.
This publication was prepared as part of the
Program Support to the Implementation of
the Family Code by Facilitating Women Access
to Justice Services -Gender and Democratic
Governance - which is implemented by the
Ministry of Justice and Freedoms in partnership
with the Ministry of Solidarity, of Women, of
Family and Social Development and with the
support of the UN Women.
Introduction
5
The family code contains important provisions
relating to marriage, they are as follows :
The authorization to contract marriage
The ratifcation of a marriage contract by two
public family notaries (adouls) necessitates the
authorization of the family judge.
The applicant for marriage submits to the family
judge the following documents:
1. A request for authorization to contract
marriage signed by the applicant or his
representative, if needed;
2. A copy of birth certifcate of both partners;
3. An administrative certifcate for each one
of them;
4. A medical certifcate for each one of them
attesting the absence of any transmissible
disease;
5. The authorization to marry in the following
cases which are :
Marriage under the legal age;
Polygamy in the case of the availability of
conditions stipulated in the Family Code;
Marriage of the mentally disabled person;
Marriage of converts to Islam and foreigners.
6. A certifcate of legal capacity to marry
in the case of foreigners, or any similar
document;
7. A marriage license for military staff,
members of the Royal Gendarmerie, the
personnel of the Directorate General of
National Security as well as members of
Auxiliary Forces, issued by the competent
authority.
Its possible - exceptionally - for the person
who cannot attend the public notaries in order
to conclude a marriage contract to appoint
someone else to replace him in its conclusion.
The legal capacity to marry
The age of marriage is 18 years old which is the
Marriage
The authorization to contract marriage
The legal capacity to marry
Marital tutelage
The dowry
Polygamy
Marriage of the mentally disabled person
The proof of marriage
Assets acquired during marriage
6
minimum age to get married for men and women.
The consent of the legal tutor is a prerequisite to
the marriage of a minor. However, the family
court may authorize the marriage of a girl or a
boy below the legal age of marriage, in a well
substantiated decision explaining the minors
interest and the reasons justifying the marriage.
The decision to authorize marriage, unlike the
decision of refusal, is not subject to appeal.
The spouses, who have not reached the age of
18 years old, acquire the civil capacity to sue
for all actions relating to marriage, rights and
obligations.
Marital tutelage
The woman who has reached the age of maturity
can contract her own marriage without a marital
tutor; or can delegate her father or one of her
relatives to do so.
The dowry
The dowry is either determined at the
ratifcation of the marriage contract, or its
determination may be ignored, which is
known as marriage mandate.
It cannot be agreed on the abolition of the
dowry.
The wife may request the payment of the
dowry; whatever the duration of marriage;
and whatever the reasons which prevented
her from requesting payment before.
Polygamy
Polygamy requires courts approval. So, a
man who wants to marry more than one wife
has to submit an application that includes
the objective and exceptional justifcation for
it and a statement of his fnancial situation
to the family judge.
The wife may not be convened because of fraud
on the part of the husband seeking polygamy,
who would have provided an incorrect address
or an incorrect name or surname. In this case,
the husband is liable to criminal prosecution
on complaint of the wife.
The court will authorize polygamy only:
- If it is exceptionally and objectively justifed;
- If the man can maintain the two families, that
no injustice is to be feared, and no condition
of monogamy has been stipulated;
If it is proved to the court, after a
reconciliation attempt, that the continuity
of conjugal life is compromised, and that
the wife whose husband is petitioning for
polygamy continues to seek divorce, it sets
a fxed amount to be paid by the applicant
which includes the vested rights of the wife
and the children, before continuing the
procedure;
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If the wife refuses polygamy, but does not
petition for divorce the court applies the
procedure of contention.
After the agreement provided for polygamy,
the judge summons the second wife to
obtain her consent.
Marriage of the mentally disabled
person
The mentally disabled person may contract
marriage.
This marriage involves obtaining authorization
from the family judge.
The future spouse of a disabled person must
have mental capacity; his/her consent must
be explicit and included in a formal document.
The rcognition of marriage
A marriage certifcate is the recognition of
marriage. That is, a marriage certifcate is
the accepted legal evidence of marriage
But in case marriage has not been offcially
registered for reasons beyond control; the
court looks at the evidence put forth to
recognize marriage, if either spouse or both
submit a request to the frst instance court.
Testimonial acts, or exchanges of confessions
do not take the place of a marriage certifcate.
The action to recognize marriage is admissible
for a transition period not exceeding ten years
from the date of entry into force of the Family
Code (05/02/2004). (Article 16 of the Family
Code).
Assets acquired during marriage
Each spouse has his/her own assets that he/
she manages according to his/her will.
Spouses may - according to their will -
agree in a separate document other than
the marriage contract, on how to manage
and develop the property acquired during
marriage.
In case of confict, the spouses resort to
the judge, who uses elements of evidence
to assess each partys contribution to the
marital property.
8
Marriage of muslim converts and
foreigners
The cases requiring the marriage
authorization
According to the provisions the article 65
of the Family Code, the authorization of
marriage is one of the documents constituting
the fle to conclude the marriage contract,
and this in several cases including the
marriage of Muslim converts (even if they are
of Moroccan nationality) and the marriage of
foreigners (whether both parties are foreign,
or one of them is foreign and the other is
Moroccan).
Hence, the submission of this authorization is
not restricted to mixed marriage; it also includes
the marriage of the converts to Islam and the
marriage of foreigners.
This authorization must be submitted to certify
the act of marriage. It must also be submitted in
the case of the action in recognition of marriage,
unless the two parties have a marriage certifcate
concluded abroad.
The competent authority to issue the
marriage authorization
The marriage of Muslim converts and foreigners
requires the marriage authorization of the family
judge in charge of marriage.
The required documents to get the
To obtain the marriage authorization, the
concerned person must submit the following
documents:
A written application addressed to the family
judge in charge of marriage containing the
applicants identity and the requests subject;
The cases requiring the marriage
authorization
The competent authority to issue the
The required documents to get the
The procedures to be followed to obtain the
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A copy of birth certifcate;
A certifed copy of ID card.
Other documents are added according to the
following conditions :
Firstly : if the applicant is a Moroccan converted
to Islam, he must present a document proving
his conversion to Islam.
Secondly : if the applicant is a foreigner, he must
present, in addition to the above mentioned
papers, the following documents :
1. A certifcate of legal capacity to marry
delivered to the foreigner by the
consulate or the Embassy of his original
country certifed by the Ministry of
Foreign Affairs in Rabat, except for
the certifcates delivered by the French
authorities;
2. The certifcate of residence (if he resides
in Morocco or a country which is not his
original country) taking into account the
period of its validity;
3. A copy of the foreigners passport (the
frst 6pages and the page that justifes the
date of his entry to Morocco);
4. Four identity photos;
5. A certifcate of nationality of the
foreigner delivered by his countrys
national authorities or by his original
countrys consulate, with the possibility
in case of diffculty to get a nationality
certifcate, to take into consideration
other documents such as the marriage
competency certifcate and the National
Identity Card;
6. Islam certifcate of the male foreigner.
Thirdly, in the case of mixed marriage the
foreigner shall present, in addition to the above
mentioned papers, the following documents:
1. A certifcate of non criminal precedents
delivered to the foreigner by his countrys
national authorities or the country of his
residence;
2. A certifcate of the central criminal record
concerning the foreigners delivered by the
concerned service at the Ministry of Justice
in Rabat;
3. A salary certifcate and certifcate
ofemployment;
4. A marriage authorization delivered by the
Ministry of Interior of Oman or Qatar if
the applicant willing to marry a Moroccan
woman is from Oman or Qatar.
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The procedures to be followed to
obtain the marriage authorization
The marriage authorization for Moroccan or
foreign persons converted to Islam requires only
the above-mentioned documents.
In the case of the mixed marriage, the family
judge in charge of marriage, or the tribunal
-in case of an action of marriage recognition-
addresses to the Kings prosecutor in the Family
justice Section at the court of frst instance, a writ
of inquiry to verify:
The absence of marriage impediments;
The professional activity and source of
income of the foreigner;
The conduct and the reputation of the
foreign person that should not undermine
the security or public order.
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Marriage and Divorce of moroccans
residing abroad
Marriage of Moroccans Residing
Abroad
In regard to the conditions of Moroccans living
abroad, they may conclude their marriage
contracts either in the services of the country
of residence or in the authentication services at
Moroccan embassies and consulates.
The conclusion of marriage contracts
in the country of residence
Moroccans residing abroad may conclude
their marriage contracts according to local
administrative procedures of the country of
residence, provided that the following required
conditions are fulflled:
1. Offer and acceptance and the legal
capacity and the marital tutor if required;
2. The absence of any legal impediments;
3. No intention or agreement to cancel the
dowry;
4. The presence of two Muslim witnesse.
A copy of the marriage contract must
be submitted within three months of its
conclusion to the Moroccan consular services
of the district where the marriage contract
was concluded.
In the absence of a Moroccan Consulate
in the country of residence, the copy
referred to above must be sent within the
same deadline-3 months- to the Ministry in
charge of Foreign Affairs and cooperation in
Morocco.
A copy is sent to the civil status offcer, in the
birth place of each spouse in Morocco.
If both or one of the spouses was not born
in Morocco, the copy will be transmitted to
the Family division juridiction in Rabat and
Marriage of Moroccans residing abroad
The conclusion of marriage contracts in the
country of residence
The conclusion of marriage contracts in
Moroccan consulates and embassies
Divorce of Moroccans residing abroad
Divorce announced in Moroccan courts
Divorce announced in foreign courts
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the kings Prosecutor at the Court of First
Instance in Rabat.
In the case of the lack of any condition, it is
possible to remedy this defciency with an
appendix which includes the shortcomings in
the civil contract, especially the presence of
two Muslim witnesses.
This appendix after being registered at the
family law section records, is added to the
concluded contract in accordance with the
local legal procedures.
The contract and the appendix are
transmitted to the civil status offce and to
the family law section in conformity with the
same previous procedure.
The registration of children in the Civil Status
Offce relies on the civil marriage contract
fulflling the required conditions in Article 14
of Family Code.
The conclusion of marriage contracts
in Moroccan Consulates and
Embassies
Marriage between Moroccans
Moroccans residing abroad may -also-
conclude their marriage contract in the
authentication services at Moroccan
embassies and consulates taking into
consideration agreements if any.
The marriage contract requires the following
documents :
1. A request of authentication of the marriage
contract signed by the applicant ;
2. A copy of birth certifcate for both of the
engaged couple ;
3. An administrative certifcate for both of
the engaged couple ;
4. A medical certifcate for each of the
engaged couple;
5. A marriage authorization is required in
the following cases :
Marriage of persons under the legal age of
marriage ;
Polygamy when the required conditions
are fulflled (taking into Consideration the
domestic law of the country of residence) ;
The marriage of a mentally disabled person.
6. A copy of passport, and the certifcate of
residence if any.
After the authentication of the marriage contract
by the judge, the original marriage contract is
given to the wife and an authenticated copy
is given to the husband. A summary of the
contract shall be transmitted to the Civil Status
offce at the birthplaces of both spouses. If one
or both spouses were not born in Morocco, the
marriage contract summary is transmitted to
the Kings prosecutor offce at the court of frst
instance in Rabat.
13
The mixed marriage
Moroccans living abroad may conclude
this marriage contract in the Moroccan
embassies and consulates in conformity with
agreements- if any- and the domestic laws of
the host country, it may include the following
documents :
1. The same documents required to conclude
marriage contract in the Moroccan
embassies and consulates as it has been
mentioned ;
2. This marriage should take into account
that the husband has converted to Islam
and that the wife is monotheist if she is
not a Muslim woman.
The consulate should make an enquiry
concerning the foreigner, in which he
provides a document certifying that there
is no impediment to the conclusion of this
marriage contract.
The authorization of the marriage by the
judge should be maintained in the fle, and
a copy of the contract shall be transmitted to
the Court Clerks offce to conclude marriage
contract.
A summary of the contract shall be
transmitted to the Civil Status offcer, as it
has been cited above.
The recognition of marriage
After the publication of the Family Code,
rcognize there is no recourse to prove
the marriage by witnesses or exchange
of confessions between spouses because
the contract is the only accepted legal
recognition of marriage. If for reasons of
force majeure the marriage contract was not
offcially certifed in due time, the recognition
of the marriage is issued following a court
judgment.
Petitions for recognition of a marriage are
admissible in Moroccan courts within an
interim period not to exceed fve years from
the date of the publication of the Family Code.
Delegation to a proxy is possible to submit
an application for recognition of marriage in
Moroccan courts.
The request includes the full identity of the
spouses, and the conditions of marriage
available to it, its duration, and number of
children if they exist, and dates of their birth,
and means to prove the marriage, and if the
wife is pregnant or not.
If the witnesses who know the spouses are
residing abroad, and could not come to
Morocco to testify in court, their testimony can
be declared in front of two Adouls who take
note, and will be transmitted to the court.
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The two spouses can accomplish an
authenticated document by consulates as an
evidence to present in front of the court to
prove the marriage.
If the spouses insisted that the document
should be done by two Adouls (public
notaries) their testimonies can be,
exeptionnally, heard by those Adouls.
The marriage by witnesses and exchange
of declarations between spouses does
not replace the marriage contract, but are
submitted to the court for marriage suit.
Divorce of Moroccans Residing Abroad
Divorce in Moroccan courts
The applicant for divorce must petition the
court for authorization to certify divorce by
two Adouls.
The court - before the authorization of
divorce- summons the spouses for a
reconciliation attempt if they are present
in Morocco. And if they are abroad, the
court can mandate the nearest Moroccan
consulate to the country of their residence
to reconcile them.
The court fxes the vested rights of the wife
and children - if they exist-
The couple can pursue the procedure of
divorce by mutual consent for its easy and
simple proceedings.
The two spouses or one of them can apply
for the authorization of divorce by mutual
consent together with their agreement and
a copy of it.
The two spouses can mention in their
divorce request - as well as in any divorce
request in exchange for compensation
khol- their mutual will to overpass the
reconciliation attempt phase with reference
to the address of the nearest consulate.
If the court considers a reconciliation
attempt necessary, it mandates the
consulate to perform it.
Divorce announced in foreign courts
It is known that the judgments issued
by foreign courts are not implemented
in Morocco, only after granting it the
exequatur, by the Court of First Instance.
The application is submitted -unless
international agreements provisions stipulate
otherwise- accompanied by the following
documents :
1. Certifed copy of Judgement ;
2. The original certifcate of notice or other
document that can replace it ;
3. Certifcate of the court clerks offce
attesting that the sentence is exposed to
no opposition or appeal or cassation ;
4. Full translation into Arabic -when
15
necessary- of the documents mentioned,
certifed by a sworn translator.
Delegation to a proxy is possible in
Moroccan courts to accomplish the
mentioned proceedings.
The interested person can write an
application to the public prosecutors offce
in the submit the request of the exequatur,
especially regarding divorce by mutual
consent. This application ; along with
the attached documents cited above, is
addresset to the Directory of Civil Affairs
in the Ministry of Justice, or the Consular
and Social Affairs Direction in the Ministry
of Foreign Affairs and Cooperation.
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The importance of establishing the
document of marriage contract
The establishment of the document of marriage
contract is of considerable importance that lies
in the following :
The regularization of the situation of the
spouses;
The regularization of the situation of children;
The protection and guarantee of rights:
alimony, child custody, fliation, inheritance,
etc .
The settlement of administrative documents
relating to marriage including the family
record book.
The obligation to establish the document
of marriage contract by two adouls
In order to protect the rights of children
and spouses, the family code has made the
establishment of marriage contract compulsory.
The document of marriage contract is the
acceptable means to prove marriage.
Testimonial document before adouls or exchange
of confessions between spouses cannot replace
the document of marriage contract.
If, for compelling reasons, both spouses have
not established the document of marriage
contract in due time, they can (either both or
one of them) initiate an action in recognition of
marriage before the family law section at the
First Instance Court to regularize their situation.
Granting a second chance for citizens
to obtain a judgment of marriage
recognition
The family code has given a second chance
to citizens who have not yet established the
Recognition of marriage
The importance of establishing the
document of marriage contract
The obligation to establish the
document of marriage contract before
two Marriage Offcers (adouls)
Granting a second chance for citizens
to obtain a judgment of marriage
recognition
proceedings in court
17
document of marriage contract to regularize their
situation, until February 5 2014. The concerned
persons, should ,before the expiration of this
time, initiate actions in recognition of marriage.
proceedings in court
The recognition of marriage proceedings is
marked by simplicity, fexibility and speed and
so with the aim of ensuring and protecting the
rights of citizens and their children.
The concerned party issues the action in
recognition of marriage before the family law
section at the First Instance Court.
The application must be supported by all
means justifying the existence of the conjugal
relationship.
The court relies on all the evidence
including: the testimony, the expertise,
presumptions for the recognition of
marriage. The court also considers
the existence of children or pregnancy
resulting from the marital relationship.
It also considers whether the action was
issued during the lifetime of the spouses.
In the case of Moroccans residing abroad
(MRE), the action in recognition of marriage
is issued either directly before the competent
courts, or by submitting an application to the
public prosecution, under the supervision of
judges attachs to Moroccan embassies and
consulates, with the required documents.
Evolution of the number of the mariage recognition
judgement for the period (2004 - 2011)
27671
registered judged
Evolution of the number of the mariage recognition
judgement for the period (2004 - 2011)
2011 2010 2009 2008 2007 2006 2005 2004 years
53652 30439 22793 27671 19818 23470 19170 8114 registered
45122 14473 13962 23390 18751 16832 14817 6918 judged
218.77% 4% -40% 25% 11% 14% 114% -
Rate of
variation of
the judged
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Reconciliation in family cases
The Signifcance of reconciliation in
family confict case
In an attempt to preserve family stability and
cohesion the Family Code urged the spouses
to resolt to reconciliation in cases of revocable
divorce, irrevocable divorce, divorce in exchange for
compensation (khol), divorce by mutual consent,
divorce before the consumption of marriage, as
well as the different types of judiciary divorce such
as divorce because of non respect of one of the
conditions in the marriage contract, divorce due
to non fnancial maintenance, divorce because
of a latent defect, divorce because of abstinence
and abandonment, with the exception of divorce
because of absence and the authorization
procedure for polygamy.
The Code of Civil Procedure provides for conducting
such attempt in all family cases, including
maintenance, custody and visitation rights of
children etc.
Recourse to the attempt of reconciliation
The tribunal which proceeded to a reconciliation
attempt uses all the mechanisms and formalities
tending to facilitate this task: the delegation of
two arbitrators, or the council of the family or
anyone who it considers qualifed to reconcile
the spouses.
the could be appealed to the Council of Ulemas,
the social workers, the magistrates working in the
embassies and consulates abroad as well as to
any person properly skilled to perform this role.
Repeated attempts to reconcile
the spouses
Given the benefcial outcome of reconciliation
for all the family members (father, mother,
children and society), the code convenes the
spouses for repeated attempts of reconciliation
in case of children. Thus, the court conducts two
attempts of reconciliation spaced by a period of
not less than thirty days.
The signafcance of reconciliation in
family cases
Recourse to a reconciliation attempt
Repeated attempts to reconcile the
spouses
Rules governing the reconciliation
attempt
Reconciliation statistics
19
Rules governing the reconciliation
attempt
The goal of the attempt is to reach reconciliation
between the spouses or an amicable settlement
between the two parties.
All the means, methods and ways that could
lead to reconciliation can be used.
It is possible - to infuence the two parties to
cite Koranic verses and the Hadith in praising
reconciliation, as well as the proverbs. mediation
techniques and other means can also be used to
achieve reconciliation.
Reconciliation statistics
The following statistics were registered in light
of the efforts undertaken by the courts regarding
the reconciliation between the spouses :
a) The reconciliation in authorization application
for divorce certifcation during the period
(2006-2011)
These statistics are:
Years
Number of family
reconciliation cases
2006 6693
2007 8512
2008 7545
2009 6818
2010 6121
2011 9848
b) Reconciliation in the judicial divorce
litigation for the year 2011
These statistics are:
types of judicial divorce
certifcation of
reconciliation
Numbre
Pending
cases rates
Divorce due to dixord 9679 16,29%
Divorce because of non
respect of one of the
Conditions stipulated in
the marriage contract
56 24,24%
Divorce due to non fnan-
cial maintenance
22 7,97%
Divorce because of the
husbands absence
89 9,97%
Divorce because of a
latent defect
1 4,17%
Divorce because of absti-
nence and abandonment
1 16,67%
TOTAL 9848 16,18 %
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Divorce procedure
The applicant for divorce must petition
for authorization to certify divorce by two
public notaries in the judicial district of the
matrimonial home, the wifes home or her
residence, or the place where the marriage
contract was concluded, pursuant to this
arrangement.
The application form must contain clear
information about the applicants identity, the
identity of his wife, their occupations and their
addresses and the number of children if any,
their age, and school and health situation.
The application should be accompanied by
the marriage certifcate and evidence of his
fnancial situation, such as salary certifcate,
income tax return and proof of his fnancial
obligations.
The court calls the husband for a reconciliation
attempt.
If he personally receives the summons and
refuses to attend court, then, his application
shall be considered withdrawn.
The use of fraud by the husband, such as
providing an incorrect address of the wife, is
punishable by penal sanctions after fling a
complaint by the wife.
The spouses must personally attend the
hearing for reconciliation. If they have
children, the court makes two attempts of
reconciliation.
If the reconciliation attempt fails, the husband
must deposit the sum of money fxed by the
court within a thirty (30) day period to pay all
vested rights owed to the wife and children.
If the husband does not do so within the fxed
time limit, he is considered to have waived his
right to divorce.
If the husband deposits the required sum
of money, the court authorizes him to issue
divorce by two public notaries in its judicial
district.
Divorce
Divorce procedure
Divorce by tamlik
Divorce by mutual consent
Divorce in exchange for compensation (Khol)
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After receiving a copy of divorce certifcate, the
court issues a decision fxing the vested rights
of the wife and children, the remuneration
of the custody after the legal waiting period
(Idda). This decision may be subject to appeal
according to ordinary procedures.
Divorce by Tamlik
The wife may petition the court to authorize her
to divorce by two adouls, if the husband has
given her right of divorce.
The request is made in accordance with the
procedure outlined above.
The court verifes that the conditions for the
assignment of the right of divorce, as agreed
upon by the two spouses, are fulflled. If the
reconciliation attempt fails, the court, on petition
of the wife, authorizes divorce.
Divorce by mutual consent
The spouses may agree to end amicably their
marriage union without condition, or on
conditions that do not contravene the provisions
of the Family Code, and which do not in any way
affect the interests of children.
Both spouses, or one of them, may fle a joint
petition for divorce, accompanied by the
agreement.
The court attempts to reconcile the spouses.
When this proves impossible, the certifcation
and validation of divorce is authorized.
Divorce in exchange for compensation
The spouses may consent on divorce in exchange
for compensation (khol), in accordance with the
rules set for divorce by mutual consent.
If the spouses agree on the principle of divorce in
exchange for compensation, yet disagree on its
reimbursement, the case shall be brought before
the court to reconcile them. If the reconciliation
attempt fails; the court approves divorce after
assessing its compensation.
22
1- Categories of judiciary divorce
Judiciary divorce because of irreconcilable
differences (discord)
Discord is a deep and permanent confict
between the spouses making matrimonial life
impossible.
The spouses or one of them may apply for
divorce to the court.
The court attempts to reconcile the spouses. In
case of failure of reconciliation, the court grants
divorce and adjudicates the vested rights of the
wife and children.
The court may also award compensation in the
same decision to the spouse who has endured
injury.
The court decides on the request for divorce on
grounds of discord in a period not exceeding
six months from the date of submission of the
request.
Judiciary divorce because of breach of
a condition in the marriage contract
The wife can fle a divorce petition if the husband
violates a condition in the marriage contract.
And also in the case of any humiliating behavior
by the husband, that causes the wife material
or moral harm such that the continuance of the
conjugal life is rendered unendurable.
The harm suffered is proved by all means of
evidence, including the testimony of witnesses.
If the wife does not prove the harm and maintains
her request for divorce, she may resort to the
divorce procedure on the grounds of discord.
In the case the court grants divorce because of
harm, the court may fx, in the same judgment,
the amount of compensation due to the harm.
Judiciary divorce
1- Categories of judiciary divorce :
Judiciary divorce because of
irreconcilable differences (discord)
Judiciary divorce because of breach of
a condition in the marriage contract
Judiciary divorce due to non fnancial
maintenance
Judiciary divorce because of absence
Judiciary divorce because of a latent
defect
Judiciary divorce because of
abstinence and abandonment
2- Judiciary divorce suits
23
Judiciary divorce due to non fnancial
maintenance
The wife may apply for divorce if the husband does
not respect his maintenance obligations towards
her. The request is considered as follows :
If the husband has suffcient assets from
which to award spousal maintenance, the
court may fx the means for paying the
wifes maintenance, and does not grant her
petition for divorce.
In the case the husband proves that he is
indigent, the court fxes a deadline for the
husband not to exceed thirty days to provide
maintenance to his wife, under penalty of
divorce, except in special circumstances.
The court grants divorce for the wife
immediately if the husband refuses to
provide maintenance or he does not prove
his fnancial incapacity.
Judiciary divorce because of absence
If the husband is absent for more than one year
without valid reason, the wife may apply for
divorce.
The court confrms the absence, its duration, and
the husbands location by all means.
If the husbands residence address is known, the
court notifes him about the divorce application
and grants divorce to the wife if he does not
come back to live with his wife, or if he does not
bring her to live with him.
If the absent husbands address is unknown, the
court, with the help of the public prosecutors
offce, takes all appropriate measures to notify
him about the wifes request, including the
appointment of a deputy for him. If he does
not appear, the court accords the irrevocable
divorce.
If the husband has been sentenced to
imprisonment or detention for more than three
years, the wife may apply for divorce after one
year of his detention.
She may apply for divorce two years after his
detention although no decision has yet been
made.
Judiciary divorce because of a latent
defect
Either spouse has the right to apply for divorce
because of a latent defect in the other party
that may prohibit cohabilitation or contagious
diseases that cannot be cured from during the
year.
The application for divorce is subject to the
following conditions:
The applicant must not have known about
the defect at the time the marriage contract
was concluded;
24
The applicant must not have behaved in
a way that would imply his or her consent
to the latent defect once she or he had
knowledge of its incurable nature;
No dowry is paid in the case of divorce on
the grounds of a latent defect before the
marriage is consummated.
Judiciary divorce because of abstinence
and abandonment
When a man takes an oath to cut off relations
with his wife, the wife submits a divorce petition
to the court, which will set a deadline of four
months. And if after this time the husband has
not repented his oath, the court issues revocable
divorce.
2- Judiciary divorce suits
The judiciary divorce is requested through
a written application or an oral statement
presented to the Clerks offce of the First
Instance Court where the marital home or
the wifes residence is located or the place
of the marriage contract conclusion.
The request must contain the names and
addresses of the spouses, the causes of
divorce demand, and must be signed by the
applicant or his representative.
The application is accompanied by all proof
documents including the marriage certifcate
or judiciary decision.
Notes :
Divorce cases are ruled within a period not
exceeding six months, excluding exceptional
circumstances, and after attempting
reconciliation between the spouses, except
for divorce case because of absence.
The court rules on the vested rights of the
wife and children, when necessary.
Divorce judgments are not subject to appeal.
25
The eligibility conditions for custody
The person petitioning for custody must meet
the following conditions :
The legal maturity for non- parents ;
The rectitude and honesty ;
The ability to protect the custodian childs
life and health, to preserve his religious
orientation, and to ensure his education and
schooling.
The woman seeking custody will not marry
except in certain exceptional cases.
The persons entitled to child custody
After divorce the child custody rights are
conferred upon :
The mother ;
The father ;
Then, the maternal grandmother.
In the absence of the above mentioned persons,
the court awards custody to the most qualifed of
the childs relatives , ensuring that he enjoys all
the rights he is entitled to by the foster parent,
otherwise he or she is entrusted to an institution
qualifed for this purpose.
The period of custody
Custody lasts until the age of legal majority
which is 18 years old for both male and
female. However, both son and daughter have
the right at the age of 15 to choose their foster
parent.
In the absence of parents, the child may suggest
one of his/her relatives, unless doing so would
confict with his/her interests, and provided that
his legal tutor consents. In case of disagreement,
the court settles the matter on the basis of the
childs choice.
The remuneration of custody
The custodial charges are paid by the person
responsible for the childs maintenance, and it is
separate from the breastfeeding salary and child
support.
No custodial salary is due to the mother during the
marriage or during the legal waiting period after a
revocable divorce.
Child custody
The eligibility conditions for child custody
The persons entitled to child custody
The duration of child custody
The remuneration of custody
The withdrawal of custody
The relocation of the custodian child
abroad
Child custody and visitation
26
Withdrawal of custody
The right to custody is lost by the breach of
the conditions listed above, as well as in the
following cases :
1-The marriage of the custodial mother
a. A mother who remarries may lose custody
of her children, with the exception of the
following cases :
She will not lose custody :
If the child is under the age of seven or if the
childs separation from the mother would
cause him or her great harm ;
If the child suffers from an illness or a handicap
which renders his or her custody diffcult for
any person other than the mother;
If she is the childs legal representative;
If her husband is in a degree of kinship
relations precluding marriage (mahram), or
he is the childs legal representative.
b. If the custodian is not the mother, she may
only retain custody if :
She is the childs legal representative ;
Her husband is in a degree of kinship relations
precluding marriage (mahram), or he is the
childs legal representative.
2- The relocation of the custodial parent in
Morocco
Child custody is not lost if the custodian or legal
tutor moves to another locality within Morocco,
unless it is proved to the court that there is a
basis for its withdrawal.
The relocation of the custodian child
abroad
The custodian can travel with the child outside
of Morocco with the legal representatives prior
consent. In case of disagreement, the authorization
can be sought from the judge.
Authorization shall not be granted until the judge
has ascertained that such travel is temporary and
that the child will be returned to Morocco.
Child custody and visitation
The parents may agree on the arrangement
of visitation rights. They inform the court that
records the contents of the agreement in the
decision awarding custody.
If the parties fail to reach an agreement, the
court fxes times and places for child visitation to
avoid litigation which could arise from this issue,
taking into account the particular circumstances
of the parties.
Any applicant may seek to review the visitation
agreement, if circumstances warrant.
27
The causes of maintenance
The causes of maintenance are the marital
relationship, family relationship, and commitment.
And self-suffciency is presumed until the contrary
is proved.
The contents of maintenance
Maintenance includes food, clothing, medical
care, childrens education and all that is judged
crucial.
The housing obligation is the responsibility
of the person liable for paying maintenance
irrespective of the alimony and the custody
charges.
Evaluation of maintenance awards
When determining the amount of maintenance
to be awarded, the court takes the following
factors into consideration, referring to an
average; the donors resources, the situation of
the benefciary, the cost of living and the school
and social situation in which the children live
before divorce.
The court may resort to expert assistance if real
income would be diffcult to determine.
Ways to enforce court - ordered
maintenance
The court determines ways to enforce an
order fxing maintenance and housing
costs. Maintenance will be withheld from
the source of income or salary earned by
the person responsible for maintenance.
And, if necessary, the court issues orders
to guarantee the continuity of maintenance
payments.
The judgment rendered concerning the
evaluation of maintenance shall remain in
effect until the issuance of another decision
that replaces it or until the right of the person
benefting from the maintenance lapses.
Maintenance (Alimony)
The causes of maintenance
The contents of maintenance
Evaluation of maintenance awards
Ways to enforce court - ordered maintenance
Review of maintenance awards
The period for which maintenance is due
When does a person lose the right to
maintenance ?
What might happen if one refuses to pay
spousal maintenance ?
28
Review of maintenance awards
No petition for an increase or a decrease in the
legally fxed maintenance shall be admissible
before one year has elapsed. Nevertheless, the
court may give favorable consideration to the
request for review, if exceptional circumstances
occur.
The period for which maintenance is
due
The wife can petition for maintenance
starting from the date the husband has
ceased maintenance payments, no matter
how long she kept silent about it.
Child maintenance is paid starting from the
date such payment has ceased.
Maintenance payments for indigent parents
start from the date the request was fled.
When does a recipient (benefciary)
lose the right to maintenance ?
The wife does not lose her right to maintenance
unless she has been ordered to return to the
conjugal home and has refused.
Maintenance paid by the father to his children
continues until they reach maturity or until
those who pursue their education reach the
age of twenty-fve.
The father continues to pay maintenance to
the child suffering from a handicap and is
unable to earn a living.
Maintenance paid to the daughter shall not
cease until she can earn a living on her own
or until her maintenance becomes incumbent
upon her husband
What might happen if the father
refuses to pay maintenance ?
If the parent fails to pay child maintenance
without reasonable excuse for a maximum
period of one month, he is legally responsible
under the provisions governing family
abandonment.
29
Full capacity
A person has full legal capacity when he attains
the age of maturity, typically 18 years except for
the demented, the prodigal, the insane or the
lunatic.
Emancipation
When a minor attains the age of sixteen years
old and demonstrates signs of maturity, he can
petition the court for emancipation. His legal
representative may also submit this request to
the court.
Emancipation implies that the emancipated
minor acquires full capacity to administer
his funds. However, his non fnancial rights
are subject to the legal texts that organize
them.
The authorization given to the
discerning minor to administer a part
of his property
A child, who has attained the age of discernment
(12 years old) but has not yet reached the
age of majority, may receive from his legal
representative a part of his funds to administer
it on an experimental and trial basis. Permission
is granted directly by the legal tutor or by a
decision of the judge in charge of minors on
the basis of a request submitted by the minor
himself or by the court-appointed guardian or
the testamentary guardian.
The procedure to establish
guardianship and to remove it
Mentally incompetent persons (demented,
Legal capacity and representation
Full capacity
Emancipation
The authorization given to the discerning
minor to administer a part of his
property
The procedure to establish guardianship
and to remove it
Legal representation
Judicial supervision of the tutor : the
father and the mother
Judicial supervision of the
testamentary and court-appointed
guardians
Division of property owned jointly by
the minor and a third party
30
prodigal, lunatic, insane persons) may be
placed under guardianship by the court of
frst instance Family Law section - at the
request of the public prosecutors offce or of
any interested party, according to the reasons
given in the held petition.
The court may decide to appoint a guardian
for the mentally incompetent persons from
the time their situation is recognized. This
guardianship shall be removed from the date of
the disappearance of its causes.
Legal representation
Legal representation is made either by legal
tutorship, the dative tutorship or testamentary
guardianship.
The legal tutor : the father, the adult mother,
in the absence of the father or when the
father is deprived of his capacity; and the
judge.Le tuteur lgal : le pre, la mre
majeure en cas dabsence du pre ou de
son incapacit, et le juge.
The testamentary guardian : is named in a
will by the father or mother. The testament
is submitted to a judge for verifcation and
approval upon the death of the testamentary
guardian. The mother and the father may
revoke their testament.
The court-appointed guardian : is an
individual who is appointed by the court (a
judge) to be legally responsible for the affairs
of a minor, in the absence of the father, the
mother and the testamentary guardian.
Testamentary and court-appointed
guardians must be fully capable, diligent,
well - informed and honest.
Judicial supervision of the tutor (wali) :
the father and the mother
Judicial supervision of the father and mother
works as follows:
The tutor is not subject to the authorization of
the judge in charge of minors affairs concerning
the administration of the minors funds.
If the value of the minors funds exceeds 200,000
dirhams, the tutor has to notify the judge in
charge of minors affairs. The incapacitated
individual or his /her mother can also petition
the judge to open a fle of legal representation.
The judge may lower the aforementioned
sum and order the opening of a fle of legal
representation if he considers it to be in the
interests of the incapacitated person.
The tutor must submit an annual report to the
judge about how he managed the minors
property and how he protects his (the minors)
person.
At the end of his mission, the tutor must
submit a detailed report to the judge about the
31
situation of the minors property for approval
after ensuring the validity of the income and
expenses and the debt or credit situation of the
minors property.
Judicial supervision of the testamentary
and court-appointed guardians
The testamentary tutor or the court-appointed
guardian must submit to the judge in charge of
minors an annual account referring to different
income and expenses of the incapacitated
person by clarifying his position debtor or
creditor.
If the testamentary tutor or the court-
appointed guardian refuses to abide by the
order of the judge in charge of minors, to give
explanations concerning his management of
the minors property, or refuses to submit
annual accounts, or if he refuses to transfer
the minors property that is still in his
possession to an account opened on behalf
of the minor in a public institution, the judge
may ask the frst instance president to order
a seizure of the guardians property, or an
interlocutory decision to place his assets in
receivership, or to prescribe a penalty to
force him to comply.
If the testamentary tutor or the court-appointed
guardian fails to perform his mission or is unable
to do so, the court may dismiss or remove him,
at the request of the public prosecutors offce or
any interested person, after considering his or
her justifcations.
The testamentary and court-appointed guardian
cannot perform certain acts without the
authorization of the judge in charge of minors
affairs; this is the case in the sale of the minors
immovable or movable property whose value
exceeds 10,000 dirham, or creation of property
rights, such as mortgage
Division of property owned jointly by
the minor and a third party
If the legal representative and a third party
agree on a shared project, it is submitted to the
court for approval after ensuring that the minor
is not prejudiced.
If there is no agreement on the shared project,
the interested party should suit an action against
all partners.
32
Defnition: what iskafala of the
abandoned child ?
Kafala of the abandoned child is the
commitment to take charge of his or
her education, protection and fnancial
maintenance. It does not result in the
affliation between the person to whom the
kafala is entrusted and the child, knowing
that the court declares a child to be
abandoned unless he or she belongs to the
categories prescribed by law.
Conditions of the kafala of the
abandoned child
The kafala of abandoned children is entrusted
only to the persons and organizations mentioned
below;
1st : Muslim spouses who are mature and
are both morally and socially capable to
ensure the Kafala of the child and who
have suffcient material means to support
him or her; they are not infected with
diseases that are contagious or that may
render them incapable of assuming their
responsibility. They must have not been
convicted for violating morals or committing
a violent act against children.
They should not be in confict with the child for
whom they seek Kafala or to his or her parents
by a lawsuit or by a dispute involving worries for
the childs interest.
2nd: The Muslim woman fulflling the conditions
mentioned above.
3rd: the public institutions in charge of childhood
protection, organizations and associations
recognized as serving the public interest
and are able to rear them according to
Islam.
Kafala (Muslim adoption) of
abandoned children
Defnition: what is kafala of the
abandoned child?
Conditions of the kafala of the
abandoned child
The procedures for taking the kafala of
the abandoned child
The effects of caring for the abandoned
child
Permanent residence abroad of the child
taken in charge
The suspension of the kafala
33
The procedures for taking the kafala
of an abandoned child
The person desiring to assume Kafala (to
adopt) of an abandoned child must submit
an application to the judge in charge of
minors affairs whose jurisdiction is in the
place of residence of the child.
The application must be accompanied by
documents justfng that all the aformentioned
conditions are met, and a copy of the birth
certifcate of the child to be taken care of.
The judge in charge of juvenile cases - after
an inquiry to make sure that the required
conditions are fulflled - orders the kafala of
the child, and designates the person who is
granted guardianship.
This order yields a series of effects.
The effects of the act of kafala
kafala is an act that entails the following effects :
The person in charge of the abandoned
child (kafl) is responsible for his or her
maintenance and his or her protection, until
his or her legal majority (18 years old).
If the child to be taken care of (makfoul) is
female, maintenance continues until her
marriage or until she can sustain herself
with her needs.
If the adoptive child (makfoul) is handicapped
or unable to meet his or her needs, the
maintenance obligation continues.
The person in charge of the abandoned
child benefts from social assistance and
allowances allocated to parents for their
children.
The person ensuring kafala (Kafl) is civilly
liable for acts of the child in care.
Permanent residence abroad of the
child taken in charge
If the person who is assigned the Kafala
wishes to travel and reside abroad with
the child taken in charge, he must obtain
authorisation from the judge in charge of
minors.
Before granting authorisation to leave the
national territory to the host country. The
judge ensures the existence of a judicial
agreement allowing the system of kafala,
with the country in question. The adoptive
parent has to submit a certifcate issued by
the authorities of the country of destination,
certifying that the makfoul (the adopted
child) will have a stable legal situation in the
host country.
The judge in charge of minors sends a copy of
the authorization to the Moroccan consulates
where the adoptive parent resides to follow
up the childs conditions and monitor his
34
completing of his obligations by informing
the competent judge of any violation.
The suspension of the kafala
Kafala ceases for one of the following reasons :
When the adopted child reaches the legal
age (18 years old) (except in case of child
suffering from disability, unable to support
himself and in the case of unmarried
daughter).
The death of the child taken into kafala.
The death of the adoptive parents, or loss of
their capacity.
The death of the adoptive woman, or loss of
her capacity.
The dissolution of the institution, the
organization or the association providing
the kafala.
Cancellation of Kafala by court decision.
35
Family solidarity fund
1-The categories entitled to take
advantage of the benefts of the Fund
The benefciaries from the fnancial allocations
of the Fund, when the execution of the judicial
decision setting alimony was delayed or
obstructed because of insolvency or absence of
the convicted person and when the destitution
of the mother is duly confrmed, are:
The destitute divorced mother;
The children for whom maintenance is due,
after the dissolution of marriage.
2-Conditions and procedures to beneft
from the Fund
To be the benefciary of the fund, one
must respect the following conditions and
procedures:
To submit an application to beneft from the
Fund by the destitute divorced mother or
the custodian or by the right holder among
children, if he is major, to the president of
the frst instance court which pronounced
the judicial decision or was charged with
execution or to his deputy;
The president of the court rules on the
application within a period of eight days
starting from the date of submission of the
application and takes a decision that is fnal
and is not subject to appeal. It is executed on
the original and does not need notifcation;
The benefciary of the fnancial allocation
must submit an application annexed to the
judicial decision to the competent authority
that pays the fnancial allocation as indicated
in the decision
3-The documents to be attached to
applications to beneft from the Fund
The following documents must be attached to
the application to beneft from the Fund that is
1. The categories entitled to take
advantage of the benefts of the Fund
2. Conditions and Procedures to beneft
from the Fund
3. The documents to be attached to
applications to beneft from the Fund
4. The retrieval of fnancial allocations
from the responsible of maintenance
5. The obligations of the benefciaries of
the fund
36
presented to the competent President of the First
Instance court :
For the divorced destitute mother :
1. A copy of the judicial decision fxing
alimony;
2. A minutes edited by the person charged
with execution, which proves or delay in
execution in whole or in part;
3. Birth certifcates of children to prove
motherhood;
4. A certifcate of indigence;
5. A copy of the act of divorce or a judgment
of judiciary divorce;
6. A certifcate of life.
For the children entitled to maintenance after
the dissolution of the charter of marriage :
1. A copy of the judicial decision setting
alimony;
2. The minutes edited by the person charged
with execution, which proves failure or
delay in execution in whole or in part;
3. Birth certifcates of children entitled to
maintenance;
4. A life certifcate of the children mentioned
above;
5. A death certifcate of the mother or what
proves her destitution :
4-The retrieval of fnancial allocations
from the responsible of maintenance
The competent authority proceeds to the
retrieval of the fnancial allocations, from the
responsible of maintenance, in conformity with
the requirements relating to the collection of
the public debts.
5-The obligations of the benefciaries
of the fund
The benefciaries from fnancial allocations
must submit to the president of competent
jurisdiction, after expiration of two years
from the date of issuance of the decision to
beneft, the documents mentioned above.
Any person, who received from the
competent authority fnancial allocations,
knowing it was not due, is held to reimburse
them and to pay a fne which amounts to
the double - the double of the sum of the
mentioned fnancial allocations, regardless
of the penal prosecutions.
Dpt lgal :2012MO2903
ISBN :978-9954-9233-2-0
October 2012
Conception et ralisation : Nadacom disign : 05 37 68 25 50
Imprimeur : Imprimerie Bidaoui

Morrocoan Marriage Code

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