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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)
Application of the new Moudawana
in Spain



Marriage: dowry



Dissolution of Marriage



Revocable and irrevocable
dissolution of Marriage
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
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

-
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
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
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)
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
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.
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
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
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
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)
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.
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



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)
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
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
Conclusions


The legal-family situation of female
Moroccan immigrants in Spain
cannot be treated mechanically;
rather, cultural aspects must also
be taken into consideration
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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Application of the new Moroccan Moudawana in Spain

  • 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