New reform of the family code in Morocco: Debate and controversy between conservatives and progressives

Saida Boudaghia Al-Azrak, journalist. President of the Malakat Information and Communication Association.

It has been 20 years since the last reform of the Mudawana or family code in Morocco. Since then, the women’s rights movement has gradually realized that the current family code perpetuates a series of problems and discriminates that harm women, girls and the family as a whole. And because of the social and cultural advances that Moroccan society has witnessed, voices are beginning to cry out for a profound renewal of the family code.

In September 2023, the King of Morocco, Mohammed VI, as “Commander of the believers”, sent a letter to the Prime Minister, Aziz Akhannouch, on the “reconsideration” of the family code.

And given the centrality of the legal and judicial dimension of this issue, the monarch pointed out that this reform should be carried out collectively and jointly with the Ministry of Justice, the Supreme Council of the Judiciary and the Public Prosecutor’s Office. In addition, he asked the aforementioned institutions to closely involve other bodies directly concerned, in particular: the Supreme Scientific Council, the National Council of Human Rights, the Ministry of Social Inclusion and Family, and NGOs, researchers, gender specialists, feminists, etc.

Processes to be followed and the moment we are at now
King Mohammed VI gave a maximum period of six months for these institutions to carry out “broad participatory consultations”, with different components of society and subsequently, they will have to submit amendment proposals to him. Once the monarch has made his assessment, he will give the green light to the government to prepare a draft law to be submitted to Parliament for approval.

The six-month deadline expired on March 30, and on the same day the institutions in charge submitted their proposed amendments to the king So now, we are waiting for what the monarch dictates.

Highlights of the reform and the clash between the two tendencies
The most outstanding issues of this reform have to do with: the marriage of minors, relationships outside marriage, and equality in the distribution of inheritance.

In relation to the marriage of girls, Moroccan family law prohibits the marriage of children under the age of eighteen. However, there is a legal chapter that provides for an exceptional license to marry a minor under specific conditions. For example, in difficult social situations of an orphan girl who has no one to take care of her: a judge must arbitrate and make an assessment whether to grant such exceptional license or not.

The conservative current of Moroccan society has always praised this license and believes that marriage with underage girls should not be completely forbidden. On the other hand, the progressive camp, made up of women’s and children’s human rights activists, believes that the rights of minors must be respected. Granting an exceptional license harms the dignity of minors and causes them serious psychological and physical harm. Therefore, it is expected that the new reform will further restrict such leave as it is an urgent social demand that seeks the interest of girls in accordance with national and international legislation.

Samira Muheya, president of the Women’s Rights Federation League with a sign that reads: “I want to inherit just like my brother.”

Regarding extramarital affairs , Chapter 490 of the Moroccan Penal Code criminalizes extramarital sex. And any relationship between a man and a woman who are not married means adultery and therefore constitutes a crime punishable by a penalty ranging from one month to one year in prison.

The progressive current is of the opinion that this chapter contradicts individual freedoms and Morocco’s international obligations in the field of human rights, and demands its abolition on the grounds that two people exercising a right by mutual agreement, and without causing harm to anyone, cannot be penalized. Meanwhile, the conservative sector sees it as a destruction of the morals of Moroccan society and an invitation to indecency.

Regarding equality in the distribution of inheritance, there are three points that encompass a great injustice for women.

1st – Sharia is the Islamic religious law that regulates all public and private aspects of Muslim life, and dictates that the share inherited by a male member of the family is superior to that of his sister. To give an example, in a family where there is one brother and two sisters, 50% will be inherited by the male, and the other 50% will be shared between the two sisters.

2nd – When the spouse dies, the widow only inherits 12% of the marital estate. And if the marriage has no children, the rest of the inheritance is divided among the relatives close to the deceased, especially the males.

3rd In the Sharia there is a modality called “Ataasib” and it consists in that when a father of a family dies having only daughters, a part of the inheritance is transferred to the males close to the deceased.

These three issues are currently the subject of a great ethical and moral debate in Morocco. The progressives argue that times have changed, and that the situation of women has undergone major transformations since, today, women are the head of the family and assume the same responsibilities as men, which is why they call for justice in the distribution of inheritance. On the other hand, the conservatives base their argument on the fact that Islamic law has been applying this distribution scale for 1,400 years, and that God’s command cannot be changed.

Conclusion
In this article I have only dealt with the most controversial points to which the majority of the progressive component of Moroccan society aspires, who have launched endless campaigns to make their voice heard by the competent authorities in this matter. But, in general, many aspects of the current family code show a major discrimination between women and men. It is not fair, that it remains in force while women, like men, have the same obligations!

A priori, the aspirations to improve the legal situation of women, children and the Moroccan family as a whole, and the illusions of embracing an air of change are in the hands of King Mohammed VI, and all that is needed is for common sense to prevail.