Chaimae El Menebhi Soussi, MARibero editor
The situation of women is one of the topics that arouses great interest among specialists in sociology, political science and law. This interest is due to the fundamental role played by women within society, in general, and in the family, in particular. In Morocco, the issue of women has occupied a central place in the context of the Family Code (Mudawana) where reforms have been aimed at strengthening their rights, preserving their dignity and guaranteeing greater legal protection within the family institution.
The question of women is no longer considered an exclusively national issue, since this evolution has led the Kingdom to review its legal framework, especially the rules related to personal and family status, after the incorporation of Morocco into the processes of globalisation and its constitutional commitment to respect for universally recognised human rights. Therefore, a series of provisions have been introduced to ensure a greater balance between family members, within the limits established by Islamic law.
Women took centre place in these reforms, aimed at strengthening their rights, preserving their dignity and guaranteeing greater legal protection within the family institution. With the promulgation of the Family Code, equality became one of its main objectives. The woman came to be considered co-responsible for the success or failure of the family, participating with the man in the management of family affairs.
Likewise, the expression “the guardianship of the husband” was replaced by that of “joint responsibility of the spouses“, which represents an advance in the relations between husband and wife within the family nucleus. This reform gives the family institution greater credibility based on balance and reflects the principle of equality between spouses within the family.
In line with the principle that the responsibility of the family is shared between both spouses, and with the aim of consolidating equality in the legal effects of marriage, the legislator eliminated the old distinction between the rights and obligations of the husband and those of the wife. Instead, he chose to establish reciprocal rights and duties between the two.
These rights and obligations were regulated in article 51 of the Family Code, which introduced new principles for organising the marital relationship. Among the main novelties is the suppression of terms that, due to misinterpretations, had contributed to perpetuating a position of inferiority of women. Thus, the concept of “obedience” was eliminated and replaced by notions more consistent with equality, such as “participation” and “mutual consultation.”
One of the most important changes was the suppression of the wife’s obligation to obey the husband, which meant the explicit abandonment of marital authority that was collected by the old Code of Personal Status. In the previous model, the husband occupied a position of authority and leadership, while the woman was considered dependent on his protection and guardianship.
The new Family Code is based on a different vision of the marital relationship, based on affection, mutual respect and co-responsibility. Therefore, it recognises both spouses the same rights and duties in terms of coexistence, management of family affairs and decision-making related to children, promoting dialogue and consultation.
Likewise, both spouses share the responsibility for the administration of the household, the education of the children, the family planning and the maintenance of good relations with the respective families. Likewise, fidelity and the protection of family honour cease to be an exclusive obligation of women to become a duty shared between both.
These reforms were also designed to offer greater protection to women in the event of dissolution of the marriage bond, through the recognition of rights arising from divorce, such as economic compensation (mout’a), maintenance pension (nafaqa), the right to housing, custody of children and the possibility of benefitting from a part of the assets acquired during the marriage, either through a prior agreement between the spouses or through proof of their contribution to the acquisition of such property, as provided for in article 49 of the Mudawana.
In this sense, the Moroccan Family Code regulates different forms of divorce under judicial control, especially through Articles 78 and 94-97, which establish mechanisms aimed at protecting the rights of both spouses and guaranteeing, as far as possible, a balanced solution to family disputes. Likewise, article 114 contemplates divorce by mutual agreement, reinforcing the role of conciliation and consensus in the resolution of matrimonial disputes.
In general terms, these innovations represent an important advance in the Moroccan legal system and reflect the effort of the legislator to strengthen the protection of women. Its purpose is to consolidate its position within the family and, by extension, to strengthen its role in society as a whole. However, despite the advances introduced by the Moroccan Family Code in favour of equality between spouses and the strengthening of women’s rights within the family institution, reality shows that many women continue to face difficulties after the breakup of marriage.
Divorce usually generates economic, social and psychological challenges that especially affect women, particularly when they are responsible for caring for children or have limited resources. Therefore, although legislative reforms have meant significant progress in the protection of women’s rights, challenges persist that require effective application of the law, as well as social policies that guarantee real protection and greater equity after divorce. This situation highlights the difference that can still exist between the guarantees recognised by the legislation and the real conditions that many women face after the dissolution of marriage.
