Conferencia impartida en la Inauguración de la Conferencia Internacional sobre Ciencias Sociales y Humanas, celebrada en Toronto, Canadá, noviembre de 2013.

1. International Conference of Social
Science and Education (ICSSE)
Toronto, 11-14 November 2013
Application of the new Moroccan
Moudawana in Spain:
with a gender perspective
Gloria Esteban de la Rosa
Professor of Private International Law
University of Jaén (Spain)

2. Application of the new Moudawana
in Spain

Marriage: dowry

Dissolution of Marriage

Revocable and irrevocable
dissolution of Marriage

3. The new Moroccan Moudawana

The revelations of the Prophet
constituted a major change in the
understanding of social relations,
which is not, however, considered
sufficient in our time for the defence
of actual equality for women (equal
opportunities) within the family and
society

4. What’s new?

The current Moroccan Family Code is made up of
400 articles, six Books:
-
Marriage (Book 1)
The dissolution of the bonds of matrimony and its
effects (Book 2)
Birth and its effects (Book 3)
Legal capacity and representation (Book 4)
Wills (Book 5)
Inheritance (Book 6)
Book 7 contains a collection of interim and final
provisions
-

5. The new Moroccan Family Code


The FC should be
interpreted as a
policy aimed at the
entire family
-
-
-
It serves several
purposes:
to overcome the
inequality that
weighs upon
women,
to protect the
rights of children
and
to preserve the
rights of man

6. The new Moroccan Family Code


It is based on the principles of Islam as
an egalitarian and tolerant religion
It advocates ijtihad, which is the
interpretation of the Koran in the context
of modern society and its demands,
contrary to patriarchal hierarchy and
designed to validate arguments present in
sacred legal texts

7. The new Moroccan Family Code

It clarifies the
concept of head
of family, in that
it considers the
sharing of
responsibility
between the two
spouses

It underlines the
importance of
mutual
comprehension
and consent in
managing all
issues relating to
the family (ar.4)

8. The new Moroccan Family Code

The FC has also simplified the
procedure to be followed by
Moroccan Muslims who wish to
enter into marriage overseas

Arts. 14 and 15 of FC

9. Procedure to enter into marriage
overseas


Moroccan Muslims can celebrate the
marriage according to the local
administrative procedures of their
country of residence, provided that the
conditions of consent (offer and
acceptance), capacity and offering of the
dowry are fulfilled, and the ceremony is
held in the presence of at least two
Muslim witnesses.
The celebration of marriage is said to be
valid if the parties are in agreement,
expressed through offer and acceptance.

10. The new Moroccan Moudawana

Regarding the
dissolution of
marriage, this can
occur through ta’liq or
talaq,

Talaq consists of a
unilateral dissolution
presented by one of
the spouses, usually
the husband

The wife may petition
for divorce tatliq if one
of the causes
stipulated in article 98
of the FC occurs

11. The new Moroccan Moudawana

Behind each of its articles and,
relating to the institutions contained
in the Code, there is a specific
understanding of the world and,
more specifically, family relations

12. Personal application of the Code

The provisions of the Code are for
personal application, of Moroccans
(Muslims), regardless of whether or
not they hold another nationality,
whilst residing in Morocco but also
overseas

13. Application of the Code by Spanish
authorities

the FC is not
exempt from
religious influence
in Morocco

I.e., the legal
period of
continence (given
by the Koran)

14. The Dowry

The lack of correspondence at
present of the dowry in Spanish
legislation has led the courts, even
those inclined to its recognition, to
resolve inadequately those cases

Her claim be dismissed simply
because the dowry constitutes an
institution which does not currently
exist in Spanish legislation.

15. Application of the Code by Spanish
authorities
Dissolution of Marriage
The question arises whether the fact
that the FC regulates the forms of
dissolution of marriage which a man
or a woman can apply for differently
is, in itself, incompatible with
Spanish (international) public policy



16. Spanish Public Policy?

New ways of dissolution of a
marriage have been introduced,
allowing both parties to
terminate their relationship
through the same procedure and
alleging the existence of
disagreements must also be taken
into account (art.97)

17. Revocable and irrevocable
dissolution of marriage

The length of time for
which the dissolution
of the marriage is
revocable corresponds
to the idda (legal
period of continence),
which is three
menstrual months


The G
eneral Directorate for Regis
(Resolution of 26th
October 2006) denied
the registration of a
marriage because it
was incompatible with
public policy
There is uncertainty
about the
circumstances of the
marital status of the
person

18. Revocable and irrevocable
dissolution of marriage

The divorce was
not considered to
be an authentic
dissolution of
marriage as its
revocable nature
meant that the
ties had not been
definitively broken

The similarities
between the
revocable nature
of the dissolution
of marriage and
the status of legal
separation

19. Conclusions

The legal-family situation of female
Moroccan immigrants in Spain
cannot be treated mechanically;
rather, cultural aspects must also
be taken into consideration

20. Spanish system of Private
International Law

It must promote the continuity of
the family relations of people who
migrate in their foreign place of
origin

And, it is to serve as a
"communication channel"
between legislations