In this interesting essay, Hind reviews the achievements and analyses the failures of the Moroccan family code, six years after its implementation.
Translated by Hisham from غياب وثغرات قانونية بمدونة الأسرة المغربية
The most important changes brought by the Moroccan new Family Code or Moudawana, are the protection of women’s rights, its support for gender equality and children’s rights. However, although it has been implemented for several years now, the Family Code in Morocco is still being violated and contravened. The existence of legal loopholes still allows some practices to persist, such as the marriages under the legal age of 18. This particular practice has several social and cultural roots, the most important of which is the Al-Fatiha Marriage (or the traditional religious marriage, attended only by the male members of both families and witnesses, without the provision of a formal contract, and where the recitation of the first chapter of the Quran, the Al-Fatiha, suffices for the union to be considered legitimate) which is spread in the rural areas of Morocco.
The need for an alimony fund for the protection of the family:
The new Code allows, among other things, for an acceleration of the maintenance procedure or alimony in case of divorce. This is a positive and important point, for it guaranties the divorced wife and her children the right for a decent living. But for some reason, and 6 years after the implementation of the Moudawana, the law has not yet been backed by an alimony fund that is much needed. -a body that would have helped solve many of the social problems that aroused from the real-life implementation of the new law. Morocco can learn a lot from the experiences of other Arab countries such as Egypt,Tunisia and Palestine who have already put in place a fund-based alimony system.
There’s a flip side to this reform however. The divorce rates have been soaring recently, especially among the most empoverished and vulnerable communities in the society, most probably for economic reasons. Also, in case of divorce, the law states clearly that it is the husband’s responsability to provide for the maintenance of his former wife and children, and to do so whithin 30 days or face imprisonement. After two years of divorce, and even if the husband has been spending for the household whatever money he could afford, the former wife, especially when there is a child, would still be able to sue her former husband and force him into paying nearly 30 thousand dirhams, (3000 Euros, 4000 USD). There are plenty of intricate cases like these before the courts today. Although these amounts might sound fair and reasonable, they are unaffordable in most cases given the current unstable work environment and the high rates of unemployement in this country. Even the average civil servant wouldn’t dream of affording to pay such amounts. Even the ordinary, stable and happy family wouldn’t spend that amount of money in such a short time, as is the case of most of the Moroccan population. According to Anaruz [Ar, Fr], a Moroccan national center for listening and orientation for women victims of violence, the percentage of men who fail to willingly pay their maintenance duty is as high as 57.9%.
One story has attracted my attention recently. It was aired on national radio. It’s a story of a young man suffering from diabetes, with an amputated leg, so poor that he can’t afford the price of food, let alone to pay for his Insulin, who lived on charity and yet who has been sentenced by a court to pay thousands of Dirhams to his former wife or face imprisonment. Cases like these are becoming very common unfortunately.
The Moudawana has thus created new social problems and has led to the dispersion of the Moroccan family. For this reason it has become necessary to establish an alimony fund to put an end to the problems faced by so many families, especially the most impoverished, and to ensure the rights of divorced women and their children. The Moroccan society and family are not benefiting from the perpetuation of the current system whereby men who can’t pay the maintenance duties arel led to jail. It’s a system that generates hatred, violence and domestic crimes, not to mention delinquency and its devastating effects on children’s mental health.
The absence of a law to protect women from violence:
The phenomenon of violence against women has unfortunately increased in the Moroccan society in recent years. Frightening figures show that dozens of women commit suicide every year. Out of wedlock pregnancy forces women to undergo clandestine abortions from fear of retribution, while others live with permanent disabilities due to domestic violence. The Family Code did not touch on these problems and there are plenty of legal voids in this field. Domestic violence against women doesn’t come necessarily from the husband. It can be perpetrated by the father, the brother, the relative, the employer. Also, violence is not only physical or verbal or psychological or economic, it can be sexual. Because of the ravaging effects sexual violence has on women’s psychology, it is considered rape when carried out by the husband, as recognized by the laws in many developed democracies around the world. Any sexual relationship not based on mutual consent, that is against the wishes of the wife or forced under any form of threat is rape indeed. Something Moroccan women know little about. New laws must be introduced to halt such widespread practices. Most women don’t denounce their violent husbands however or report on sexual violence either for social reasons or because they consider those practices to be their partner’s right. There are, therefore, very few reliable statistics on that matter.
According to a report [Fr] by the National Network for Listening and Legal Assistance to WomenVictims of Violence (Anaruz), published on March this year, economic and physical violence are the most prevalent (37.6% and 32.7% respectively). Sexual violence comes in third place with 10.7%, followed by judicial (sic) and psychological violence with 10.1% and 8.8% respectively. This violence occurs mainly in a marital context (87%) and at home (83.9%). The remaining forms of violence against women cataloged by the report are social (5.5%), familial (4.1%) and violence outside of wedlock (3, 4%). Violence is often chronic (84.1%) and repeated (85.9%).
The new family code was meant to ensure the stability of the Moroccan family, while guarantying equality before the law so that both genders can enjoy full citizenship. But legal loopholes, aspects of the cultural heritage and the complexity of the legal procedures have pulled back the aspirations of Moroccan society for an advanced and democratic social system. That’s why the civil society and the government, should work together and figure out new laws to help accompany the changes occurring in the society and, more importantly, to raise awareness and educate citizens. This education should start at school. It can also be implemented through the creation of training courses for workers, employees, farmers and others, and though the use of different media outlets, so that every citizen knows her/his rights and duties. Laws alone won’t change the society. We need to spread knowledge and awareness and reach those living in the countryside and the rural areas and who are unaware of the existence of a new family code, which is afflicting. Also it is important to simplify laws and make them accessible to all people. This is the role of the legislators who must examine the social impacts of laws before they enact them. And, for the sake of democracy, why not take advantage of the Web to conduct informal polls and get feedback from the people who after all should have a say on laws that concern them.
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