International Conference of Social
Science and Education (ICSSE)
Toronto, 11-14 November 2013

Application of the new Moro...
Application of the new Moudawana
in Spain



Marriage: dowry



Dissolution of Marriage



Revocable and irrevocable
di...
The new Moroccan Moudawana


The revelations of the Prophet
constituted a major change in the
understanding of social rel...
What’s new?


The current Moroccan Family Code is made up of
400 articles, six Books:

-

Marriage (Book 1)
The dissoluti...
The new Moroccan Family Code



The FC should be
interpreted as a
policy aimed at the
entire family

-

-

-

It serves ...
The new Moroccan Family Code




It is based on the principles of Islam as
an egalitarian and tolerant religion
It advoc...
The new Moroccan Family Code


It clarifies the
concept of head
of family, in that
it considers the
sharing of
responsibi...
The new Moroccan Family Code


The FC has also simplified the
procedure to be followed by
Moroccan Muslims who wish to
en...
Procedure to enter into marriage
overseas




Moroccan Muslims can celebrate the
marriage according to the local
adminis...
The new Moroccan Moudawana


Regarding the
dissolution of
marriage, this can
occur through ta’liq or
talaq,



Talaq con...
The new Moroccan Moudawana



Behind each of its articles and,
relating to the institutions contained
in the Code, there ...
Personal application of the Code


The provisions of the Code are for
personal application, of Moroccans
(Muslims), regar...
Application of the Code by Spanish
authorities


the FC is not
exempt from
religious influence
in Morocco



I.e., the l...
The Dowry


The lack of correspondence at
present of the dowry in Spanish
legislation has led the courts, even
those incl...
Application of the Code by Spanish
authorities
Dissolution of Marriage
The question arises whether the fact
that the FC re...
Spanish Public Policy?


New ways of dissolution of a
marriage have been introduced,
allowing both parties to
terminate t...
Revocable and irrevocable
dissolution of marriage


The length of time for
which the dissolution
of the marriage is
revoc...
Revocable and irrevocable
dissolution of marriage


The divorce was
not considered to
be an authentic
dissolution of
marr...
Conclusions


The legal-family situation of female
Moroccan immigrants in Spain
cannot be treated mechanically;
rather, c...
Spanish system of Private
International Law


It must promote the continuity of
the family relations of people who
migrat...
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Application of the new Moroccan Moudawana in Spain

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

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Application of the new Moroccan Moudawana in Spain

  1. 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. 2. Application of the new Moudawana in Spain  Marriage: dowry  Dissolution of Marriage  Revocable and irrevocable dissolution of Marriage
  3. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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