Divorce proceedings under Moroccan law

70.03 The enactment of the Law on the Family Code, which became effective February 3, 2004, constituted a historical event in Morocco very large.

Indeed, this text is wanting a revolution in the protection of family rights, wanted to confirm the fundamental role it occupies in building a modern and prosperous nation.


This interest in the development and stability of the Moroccan family is noticeable from the first articles of the law that, from the outset, defines marriage as a pact based on mutual consent to establish a legal and lasting union between a man and a woman. It aims to life in mutual fidelity, purity and founding a stable family under the leadership of both spouses.

The sacred bond of marriage considered both in terms of the religion of the law, it is natural that the use of its dissolution should take place in exceptional cases and taking into account the rule of the lesser evil, since this dissolution results in the dislocation of families and harms children.

Given the importance of the subject of divorce under Moroccan law, essayerons- we do not claim exhaustively - to answer the most important questions.

"The widowhood period is the period to be observed by the divorcee or widow before she could remarry again."


In case of divorce, what are the rights granted to women?

As stated in the first part of our subject, the woman enjoys several rights in case of divorce. This is the first consolation gift (MOUT'A). This compensation is entrusted to the discretion of the judge who will determine the amount taking into consideration the financial position of the husband, the degree of responsibility of each party in the divorce and marriage. Recall, however, that the woman is not entitled to this right if it will, at its initiative, judicial divorce on grounds of discord (Tatliq Chiqaq). At most, she can claim damages should it prove physical or moral damage.

Next to the MOUT'A, the woman can also benefit from housing costs as well as maintenance (nafaqa) during the period of waiting (The IDDA), the amounts of which are freely determined by the judge.

What is a widowhood period (IDDA)?

Widowhood period is the period to be observed by the divorced woman or widow before she could remarry again. It starts from the date of divorce under judicial supervision, judicial divorce, termination of marriage or the spouse's death.

Widowhood period of the pregnant divorced woman and ends on the grant or the result of an interruption of pregnancy. By against that of non-pregnant women is set as follows:

- Three complete intermenstrual periods for those prone to menstrual flow;

- Three months to one that was never subject to menstrual flow or one that has reached menopause. If she has her menstruation before the end of the period of waiting, it is extended for three periods intermenstrual;

- Three months after waiting nine months for those whose menses are late or can not distinguish the menstrual flow of another blood flow.

However, the divorced woman before consummation of the marriage and had no legal relationship with his spouse is not restricted by the period of widowhood, unless the spouse's death.

Furthermore, the widow who is not pregnant must observe widowhood period of four months and ten days.

How is governed custody of children in divorce cases (hadana)?

Before addressing the issue of child care, it is clear that the spirit of the new family code mainly revolves around the preservation and development of the general family as the core of the society, paying particular attention to the interests of children. This concern for child protection is palpable reading almost all chapters of the Family Code which requires the judge to take into account prior interest of the child before any judgment.

That said, the law imposes on the parents more obligations both for the duration of the marriage in case of divorce. Thus, Article 163 of the Family Code provides that custody is to preserve one of which could be detrimental to it, to educate and look after its interests. The person responsible for the custody shall, to the extent possible, take all necessary steps to preserve and security, both physical and moral, subject to child custody and ensure its interests in case of absence his legal representative and, if necessary, if the child's interests may be compromised.

It follows that the fiduciary duty is an obligation for both parents as long as the marriage bond is preserved. However, in case of divorce, it is primarily entrusted to the mother, then the father and then the maternal grandmother of the child. Otherwise, the court decides, based on presumptions to it, and always in the child's interest to award custody to one of the close relatives the most likely to assume. The court also ordered that decent housing is provided to the child under custody, as well as other obligations of alimony.

Child custody lasts until the child reaches the age of majority fixed at eighteen Gregorian years gone by, whether male or female. If out of the marital relationship, the child may, at the age of fifteen years of age, choose which of his father or mother will assume his care.

"In case of divorce, the child's custody is entrusted first to the mother, then the father and then the grandmother child's mother"

The woman who remarries, risk-did she lose her right to custody?

The new family code has brought some very important news regarding custody of children in divorce cases. The aim is to preserve the best interest of the latter in case of breakdown of the marriage relationship and in particular, in cases of remarriage of the recipient parent of custody. Thus the law allows it (unlike the former personal status code) to preserve its custody in specific cases:

- If the child has not reached the age of seven years or if its separation from her mother because her injury;

- If the child custody is subject to a disease or disability making it difficult to take care of someone other than his mother;

- If the new spouse is a parent of the child with whom he has an impediment to marriage or is its legal representative;

- If it is the legal representative of the child.

Note, in this regard, that the marriage of the mother who has custody absolve the father of the child's accommodation expenses and remuneration under his care but remains, however, liable for the payment of alimony due to the child.

The woman beneficiary of custody, did she a- allowed to travel with the child outside Morocco?

Although the family code automatically assigns the children's custody to the mother in case of divorce, it remains subject to several obligations to the father, recognized as legal guardians of children. Thus it is obliged to respect the rights of the father by allowing him to visit his children and receive and to exercise all his rights as a father under penalty of being deprived of this right if necessary.

That said, it is forbidden for the mother to travel with the child out of the country unless the parent authorizes it. In case of refusal of the latter, it may bring the judge to make an order authorizing her travel provided to prove the temporary nature of the trip and that the child's return is guaranteed.

Apart from this case, it is forbidden for a woman to settle down with the child out of territory under penalty of cancellation of custody.

Furthermore, the change of residence, in Morocco, the woman who takes care of the child does not entail the lapse of the guard, unless proven reasons for the court, given the interest of the child, the special conditions of the father and the distance between the child's legal representative.

Also, the custody there may be revoked at any time by a court decision, in case of breach of the mother, for example, the obligation of rectitude and honesty or following a judgment condemning acts contrary to morality, and, in general, whenever the physical or moral health of the child are threatened. Still, the mother can always give up his custody for the father as a result of mutual agreement.

"The father should provide for the maintenance of his children until their majority or up to twenty-five years of age for those who study"

What about child support in divorce cases (nafaqa)?

The father must provide for the maintenance of his children until their majority or up to twenty-five years of age for those who continue their studies. In any case, the girl loses her right to maintenance unless it has its own resources or when maintenance is up to her husband. The father must continue to maintain its disabled children and unable to procure resources. However, when the father is totally or partially unable to provide for the maintenance of his children and the mother is easy, it has to assume maintenance in proportion to the amount that the father is unable to sure.

Maintenance includes food, clothing, medical care, education for children and all that is usually considered essential. For the evaluation of costs inherent to the above requirements, it is given by reference to the average income of the person subject to maintenance and situation from that which is right, the cost of living, and uses and customs in the social environment of the person entitled to alimony.

The court bases the estimate of maintenance, on the statements of both parties and the evidence they produce. The court may call on experts for this purpose.

Another novelty introduced by the family code is that now, the child's housing costs under custody are separate from child support, compensation due under custody and other expenses. The father must provide his children a home or pay the said amount of rent accommodation as estimated by the court. Note, in this same vein, the father must maintain the same level of life led the child before the divorce.

In addition, and in order to guarantee good application of the provisions on child maintenance in general, the provisions on family abandonment are applicable to any person who is responsible for the maintenance of children and ceases to ensure, without valid reasons, for a period of one month maximum.