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Mudawana (Personal Status Code or Family Code) of Morocco

The Mudawana (مدونة) is the personal status code, also known as the family code, in Moroccan law. It concerns issues related to the family, including marriage, polygamy, divorce, inheritance, and child custody. Originally based on the Maliki school of Sunni Islamic jurisprudence, it was codified after Morocco gained independence from France in 1956. Its most recent revision, passed by the Moroccan parliament in 2004, has been praised by human rights activists for its measures addressing women’s rights and gender equality within an Islamic legal framework.

=History of the Mudawana= Historically, the creation of the Mudawana in Moroccan law represented a major step in the political and legal unification of Morocco after it gained independence from the French. Its first version was written in 1957-8 by a group of ten male religious scholars (ulama) working under the auspices of the monarchy; its substance drew heavily on classical Maliki law. As the French had ruled Morocco with a policy of legal pluralism (maintaining, for example, the existence of Berber customary law within Berber communities ), the new Mudawana was intended to signify the nation’s unity, Islamic identity, and modernity. It did this in part by codifying the system of existing patriarchal, kin-based social structures within the modern and newly independent state. In addition, the Mudawana is the only section of Moroccan law that relies primarily on Islamic sources, rather than Spanish or French civil codes, which gave it a greater sense of immutability and contributed to the difficulty of reforming it. A state's family or personal status law has wide-ranging implications for citizens' daily lives, but many gender equality advocates point out its particular significance for women, as it governs everything from the age at which they may be married, issues of divorce and child custody, their right to work and travel outside the home, and the right to travel.

Moroccan government
Morocco has been described as a “liberalized autocracy." Its constitution grants the majority of executive powers to the monarch, including the power to appoint major ministers and regional governors, and the power to set the priorities of the national agenda; effectively this limits the effectiveness of political parties and the elected members of Parliament. The King is not only a political leader, but also has the title of “Commander of the Faithful,” indicating his role as a religious leader as well. The royal family of Morocco, which claims descent from the Prophet Muhammad, therefore enjoys a sense of political legitimacy rooted in Islam and also, significantly, has the political power to dictate the form that Islam takes within Moroccan society. The monarch derives legitimacy through a traditional form of religious authority which gives him the power to arbitrate the agenda and decisions of a modern, multiparty government. Whereas the original Mudawana and its 1993 reforms were enacted by royal decree, however, the most recent round of reforms was deliberated upon extensively in Parliament, which made over 100 amendments to the code before approving it in January of 2004.

Women and civil society
In 1969, King Hassan II created the Union Nationale des Femmes Marocaines (UNFM), an organization with the stated goal of improving the social and economic status of women in Morocco but whose activities focused less on legal reform and more on professional and training programs for women. It was given the legal status of a utilité publique, an important designation for Moroccan civil society organizations, which allows them to raise funds and be exempt from taxes. Historically, this distinction, which must be conferred by the government, has provided a way for the Moroccan regime to exert a measure of control over civil society organizations, as those whose agendas conflict with that of the government typically find it difficult to obtain utilité publique status. Without this license, an association will have difficulty securing funding and has no right to recourse within the Moroccan justice system.

In the 1980s, a financial crisis led Hassan II to implement a program of structural adjustment that included some social reforms, leading to increased activity among political and civil society organizations. This included the founding of many new women’s associations, many of which began as affiliates of existing political parties. This affiliation lends them a sense of legitimacy as well as connections and support, but some argue that it limits their autonomy as well.

The proliferation of civil society organizations flourished even more in the 1990s, due in part to Hassan II’s active support for civil society associations, which reflected a worldwide trend of civil society promotion. Some have argued that the king’s support was motivated as much by international pressures and his desire to join the European Union as domestic economic and political problems. It was in this environment that calls for reform to the Mudawana first began to gain traction. It should be noted that all of Morocco’s major women’s organizations have positioned their work within an Islamic framework, drawing on the work of Islamic scholars to inform their agendas.

Early calls for reform
Despite numerous calls for reform throughout the 1960s and 70s, it was not until 1982 that women’s legal status was brought to the forefront of public debate in Morocco. Eventually, public debates and discussions led to a broad rewriting of the Mudawana in 2003-4, which many attribute to the increase in activity and organization within Moroccan civil society in the 1990s as well as a changing international environment surrounding women's rights and gender equality. Beginning in the 1990s, women’s rights organizations in Morocco gained leverage and influence by incorporating progressive elements from academia, publishing, and government, and using rhetoric that drew from Islamic sources as well as the language of national development and the rights of women and children.

In 1991, this was manifested in concrete political action as l’Union de l’Action Féminine(UAF), a women’s group within one of Morocco’s Marxist-Leninist political parties and consisting mainly of professional, middle class women, collected one million signatures on a petition calling for Mudawana reform and presented it to the Prime Minister This move demonstrated significant political support behind the idea of reform, and framed the issue more as one of politics and human rights than religion (indicated in part by the delivery of the petition to the government's political leader, as opposed to the king of Morocco, who is a religious as well as a political leader). Their primary aims were to change the discriminatory elements of the code, including polygamy and the principle that a husband has ultimate authority over his wife. The proposed reforms drew not only on principles derived from the Universal Declaration of Human Rights but also on the Islamic principles of equality, justice, and tolerance. In response, Hassan II created a commission (which he chaired) composed of 21 religious scholars – only one of them female – and a representative of the Royal Court for the purpose of reforming the Mudawana according to the Islamic tradition of ijtihad. The events were not without controversy, however, generating both a counter-petition as well as a fatwa directed against the women’s demands.

Increased activism and 1993 reforms
This commission resulted in a number of changes, implemented in 1993, which instituted provisions that (among other things) required a bride’s verbal consent to marriage, eliminated a father’s right to force his daughter to marry, and mandated the obtainment of a judge’s permission in cases of polygamy and a husband’s repudiation of his wife. Generally these reforms were considered superficial, but significant as an indicator that the Mudawana was not an unchangeable standard, as it had previously been perceived. Considering the religious origin of the laws, the fact that they had been amended at all was a significant step in demonstrating that they were subject to the process of ijtihad and not completely unchangeable.

Towards the end of his reign, in the late 1990s, Hassan II opened up the political process to opposition parties, such as the Socialist Party (USFP) and the Parti du Progres et du Socialism (PPS). The latter, which came to be associated with the Association Marocaine pour les Droits des Femmes (ADFM), played a key role in a working group that examined the family code. This group, with input from several Moroccan women’s organizations and funding from the World Bank, produced the The Plan d’action national pour l’intégration de la femme au développement (The Plan of Action for the Integration of Women in Development, or PAIWD). By the time the plan was introduced, Hassan II had passed away and his son, King Mohammed VI, had taken the throne.

The PAIWD was formulated and promoted in the context of Morocco’s 1993 ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Moroccan government’s subsequent commitment to developing a national strategy to address the status of women in 1995. Arising from this context, the PAIWD did not explicitly reference Islamic values, and was more closely related to a “development discourse” that formed a crucial element of Mohammad VI’s national agenda. PAIWD’s main areas of focus were education, reproductive health, the involvement of women in development, and empowerment through legal reforms and a strengthening of political power.

The creation of PAIWD, and the stir it caused, effectively created two opposing political factions among Morocco’s political elite, one identifying as “modernists” lobbying against the influence of Islamic extremists and the other identifying as traditionalists who insisted that newly proposed reforms were rooted in Western interference. In particular, the Moroccan minister for religious affairs opposed the plan, and the Moroccan cabinet became divided over the issue. The debate extended beyond the realm of the political elite, however, eventually sparking enormous rallies in March 2000: one in Rabat, attended by 500,000 supporters of the proposed reforms and one in Casablanca, attended by 2 million people who opposed them. These figures illustrate a polarization that exists in Moroccan society through today, and the divisions and controversy associated with it, along with the rise of Islamic movements in Morocco, effectively prevented the PAIWD's implementation. One point of common ground between both factions was an appeal to the king for arbitration: traditionalists felt only the king had the right to change the law, and the modernists felt the king had the right to exercise ijtihad and ultimately decide the role that Islamic law would play in Morocco’s legal framework.

Reforms of 2004
On March 5, 2001, a year after the rallies in Casablanca and Rabat, King Mohammed VI announced the formation of a commission to reform the Mudawana, members of which included a Supreme Court justice, religious scholars, political representatives, and intellectuals from a number of different backgrounds, including female representatives from women's organizations. At the same time, king took several steps viewed as promoting women’s status in Moroccan society, including mandating that 10 percent of seats in the lower house of the Moroccan parliament be reserved for women and promoting several women to senior administrative positions within his government. On October 10, 2003, the King presented Parliament with a plan to replace the old Mudawana entirely, on the commission’s recommendation, describing the new law code as “modern” and intended to “free women from the injustices they endure, in addition [to] protecting children’s rights and safeguarding men’s dignity.” In doing so, he emphasized that the reforms were not intended to address women’s rights exclusively, but to address issues associated with the family as a whole.

The king also referenced his role as “Commander of the Faithful,” referring to his role as both political and religious leader of Morocco, and pointed out that as such, “I can neither prohibit what is legal nor sanction that which is illicit.” When announcing the reforms, the king emphasized their compatibility with Islamic principles, even quoting supporting passages from the Qur’an and the Hadith. He also indicated that he sought to “reflect the general will of the nation” rather than impose legislation, and described the reform as not a victory for one side or the other.

Parliament ratified the new Mudawana in January 2004. After the reforms were announced, the United States government, the World Bank, and Human Rights Watch all released statements of support for the new laws. Likewise, the European Union considered Morocco to be the “most advanced country on the southern shore of the Mediterranean” in terms of rule of law and democratization.

Major provisions of the updated code
1. Both spouses share responsibility for the family; “women are men’s sisters before the law.”

2. Once a woman comes of age, she does not need a marital tutor (a male relative, usually the father who speaks on her behalf). Women cannot be married against their will, though if they wish to designate a male relative to act as their marital tutor, they may.

3. The minimum age for men and women to be married is 18 unless specified by a judge; in addition, boys and girls under custody may choose their custodian once they reach the age of 15.

4. A man may only take a second wife if a judge authorizes it, and only if:
 * there is an exceptional and objective justification for it
 * the first wife consents
 * the man has sufficient resources to support the two families and guarantee all maintenance rights, accommodation and equality in all aspects of life. Moreover, a woman can stipulate in her marriage contract that her husband may not take a second wife, and a first wife must consent to the second. The first wife may also petition for divorce if the husband takes another wife.

5. Moroccans living abroad may complete a marriage contract by drawing it up in the presence of two Muslim witnesses, according to the local laws, and registering it with local Moroccan consular or judicial authorities.

6. The right to petition for divorce belongs to both men and women, though procedures for reconciliation and mediation are encouraged. A man may not repudiate his wife without the permission of a judge, and she and her children must be accorded their full rights under the law. Divorce proceedings take place in a secular court, rather than before a religious official. (See Islamic marital jurisprudence).

7. If a man does not fulfill his obligations according to the marriage contract, or causes his wife harm such as abandonment or violence, she has the right to file for divorce; the new law also provides for divorce in situations of mutual consent.

8. Children’s rights are protected according to the international conventions Morocco has signed. Priority in terms of child custody goes first to the mother, then the father, then the maternal grandmother, or to whomever a judge deems the most qualified relative. Children in custody must be given “suitable accommodation,” the terms of which must be settled within a month of any dispute. The parent who gains custody of the child keeps the house.

9. Children born outside of wedlock have the right to the acknowledgment of paternity.

10. A man’s daughter’s children as well as his son’s children have the right to inherit property.

11. A married couple may negotiate an agreement separate from the marriage contract regarding the management of assets they acquire while married (this does not negate the principle of separate marital property)

=Reactions and Implementation=

Positive reactions and support
When announcing the reforms, King Muhammad VI indicated that he sought to “reflect the general will of the nation” rather than impose legislation, and described the reform as not a victory for one side or the other.

Many groups and individuals (both in Morocco and abroad) reacted favorably to the revised code, pointing out that from an economic perspective, it finally legally recognized women’s economic contributions to the household – not an insignificant point, as in 2000, women represented over a third of the Moroccan workforce. Some cite surveys that indicate broad support for the reforms to the Mudawana, especially among women. Supporters point out that the reforms indicate a democratization of Moroccan society on two fronts: because of the sense of pluralism and debate they sparked in the public sphere, and because of their movement towards an individual-based rights system, as opposed to one based on collective rights.

Many activists and scholars embrace the reforms as evidence that gender equality is compatible with Islamic principles; indeed, some scholars have argued that what they consider to be an authentic interpretation of Shari'a actually requires reforms in the name of gender equality.

Negative reactions and opposition
Others claim that the reforms do in fact represent an imposition of legislation that does not enjoy broad support, pointing out that opinion polls often favor urban populations and are not representative of Moroccan society as a whole. Many Islamic groups have emphasized that they do not oppose reform of the Mudawana in general, but reject what they view as reforms rooted in externally imposed principles, such as those based in international human rights law, as opposed to exclusively Islamic origins.

Some have described the women’s rights movement in Morocco as a movement of elites. Most women’s organizations in Morocco receive external funding, whether from the government, various Moroccan political parties, or international actors such as USAID, the European Development Bank, and the World Bank, which has left them open to criticisms that their agendas are tied to the sources of their funding and therefore compromised. However, some scholars have argued that just because the movement was started among elites, it does not necessarily follow that they are incongruent with grassroots interests. Still others point out that in an even broader sense, the universal notion of formal equality itself may not be evenly applicable or relevant to women from different social, cultural, and national backgrounds.

Furthermore, just as some scholars praise what they see as a confirmation of the compatibility of Islam and gender equality, others point out that by requiring the framing of gender equality within an Islamic framework, the means by which Muslim women can advocate for equality is inherently limited. This process also arguably reduces Islamic women to a single, universal category that does not recognize their individual choices. Critics consequently point out that the Mudawana represents an improvement in women's status but still falls short of establishing their full equal standing with men in either the family or the social sphere.

Other critiques of the Mudawana point out that irrespective of the value of the reforms themselves, the process by which they were achieved is flawed, creates difficulties for their implementation, and can even be considered counter-productive to the process of democratization. It can be argued that while the reforms do represent a significant transformation of women’s rights, they also serve to solidify and expand the authority of the monarch as the defender or insurer of those rights. In the end, the civil society associations that lobbied for the reforms had to work within the existing authoritarian system, appealing directly to the king for change rather than working through a democratic political process. Finally, some characterize the high degree of debate and deliberation over the issue as a dividing influence in the end; a representative from one Moroccan women’s organization described the women’s movement in Morocco not as a movement, but an uncoordinated group of different organizations.

Barriers to implementation
There are social, legal, logistical, and political barriers to the actual implementation of many of the reforms in the new Mudawana. The top-down nature of the reforms have resulted in many members of the judicial system simply ignoring the new laws’ provisions. Other problems with the judicial system include a lack of training among the judiciary as well as provisions of the law that allow individual judges to consult principles of Shari'a in situations that are not covered by the Mudawana, which could open the door to an application of older, pre-reform style judicial decisions.

In terms of social barriers, there is a significant gap between formal legal reforms in theory and their practice in reality. In Morocco's more rural and underdeveloped areas, legal equality is perceived as less of an immediate priority than basic, everyday needs. . High levels of female illiteracy and a strong sense of traditionalism in many rural areas further compound these challenges.

Legally speaking, the Moroccan penal code still does not reflect the principles of gender equality established within the provisions of the Mudawana. For example, a woman still needs her husband’s permission to obtain a passport and can be penalized for having a child out of wedlock, and there is no legislation addressing or criminalizing violence against women. Judges also retain the right to oversee mandatory reconciliation in the case of divorce, which many women's organizations fear will be used to limit women's autonomy during divorce proceedings.

Logistically, the new code created a new system of family courts to handle family law matters, presenting the logistical challenges of establishing a new, nationwide system from scratch as well as creating opposition among adouls, Moroccan officials who previously had jurisdiction over marriage and family matters. Some critics have even classified the family court system as a lower or "second-class" justice system for women.

In terms of political barriers, some classify the reformed Mudawana as an example of strategic liberalization, typical within certain "liberalized autocracies," that arises out of internal and external pressures but is ultimately limited in the extent of its reforms. The argument that follows is that the reforms are essentially superficial because it is in the government's interest to favor the maintenance of the status quo over the potential conflict that would arise were the reforms to be implemented on a full scale.

Results of implementation
Five years after the new Mudawana laws were passed, the president of the ADFM noted that opposition to its reforms was still present among the judicial system. While polygamy had become nearly nonexistent, she noted, one out of every ten marriages still involved a minor as of 2007, and the system was facing organizational challenges. According to a poll conducted in 2010, 85% of Moroccan women supported the reformed Mudawana, while only 59% of men expressed similar levels of support. Men tend to view the laws as negatively impacting them, and cite religion as a reason for opposing them. Women's dissatisfaction with the Mudawana, however, reflects a belief that it is not implemented widely and successfully enough to address the problems of women's rights.

However, there is some evidence that the reforms are not totally without effect. According to the Moroccan Ministry of Justice, in 2008 there were more marriages and slightly fewer divorces in Morocco. Of the divorces granted, almost 30% were divorce by mutual consent - which did not exist before the 2004 reforms. Moreover, while over 14,000 divorce proceedings were initiated by men, over 26,000 were initiated by women in 2007; before the reforms, women did not have the right to initiate these proceedings. Finally, the number of women arranging their own marriages increased by over 14% between 2006 and 2007.

=Comparable personal status/family codes in the region=

Tunisia
Like Morocco, Tunisia's legal system draws from both French civil law and Maliki jurisprudence. Starting with the first legal structures created after Tunisia gained independence in 1956, it was clear that family law in Tunisia was intended to be "an instrument of social change and amelioration of the poor status of women." Gender equality is laid out in the constitution of Tunisia and specifically delineated in the personal status code, which stipulates women's equal responsibilities within a marriage and their equal rights in divorce. While it is not an exclusively secular legal framework, its references to Islam are much more implicit than those in Morocco's Mudawana, and it retains strict Islamic tenets on only a few issues, such as dowry and inheritance.

Algeria
The Algerian government first introduced a conservative family code in 1981; this first version was met with protest from Algerian women, who began to build a coalition with women activists in Tunisia and Morocco. A less conservative version of the code was eventually passed into law in 1984; it draws more heavily from traditional Islamic law than that of Morocco or Tunisia, containing provisions requiring a wife to be obedient to her husband, who is specified as the sole head of the household, and to respect his parents and family. In response to advocacy undertaken by the women's movement, reforms to the family code have been suggested and announced, but have not been enacted so far.

=See also= Code of Personal Status (Tunisia)

Algerian Family Code

Sharia

Women in Islam

Human Rights in Morocco

incorporate current links as well