More than Ten Years after Morocco’s Family Code Reforms: Are Gender Gaps Closing?
Senior Public Sector Specialist
Introduction: In 2004, the Government of Morocco made major amendments to its Family Code, known as the Moudawana, which covers personal status issues such as marriage, divorce, alimony, child support, child custody and inheritance. The reforms covered a broad array of personal status issues that are important from the perspective of gender equality.
Women’s rights within the household improved on two levels. The first was that husbands and wives were provided ‘joint responsibility’ in family matters, making both de jure heads of the household. Theoretically, this could provide a basis for wives to exert more influence in household decision-making. The second was that women were no longer required to be obedient to their husbands, a concept which had been a key element of the earlier law and continues to exist in other family codes in the region. Obedience had been used as a justification for husbands to, among other things, forbid wives from working, traveling, controlling their own incomes and acquiring economic assets. Failure of a wife to display obedience had been legal grounds for a wife to lose access to her alimony – financial resources to care for the family – which a husband is legally required to provide.
Restrictive social norms are at least partially limiting the ability of women to exercise these new rights. For example, a 2009 survey found that 19 percent of urban women and 15 percent of rural women reported domestic violence linked to the exercise of their new rights under the Moudawana.1 Further, public sector services linked to these rights are often inadequate. The Family Solidarity Fund, established to directly assist vulnerable divorced women, had only around 800 beneficiaries as of the end of 2013, a relatively small number given the weak enforcement of decisions providing alimony and child support. Assessing implementation of the reforms remains difficult due to a general lack of comprehensive data. Comprehensive data on the implementation of reforms are lacking, but what limited data are available shed some light on reforms aimed at greater gender parity, namely: procedures for entering into marriage; management of marital property; and access to divorce.
Marriage Procedures: Women were given the right to sign their own marriage contracts, effectively eliminating the requirement for consent from a male relative acting as a legal guardian. This could increase a woman’s bargaining power both before and during marriage, since the contracts regulate a number of factors such as financial maintenance of the wife by the husband and dowries. Women can also place a number of stipulations in the marriage contract that can protect their interests during marriage, including forbidding polygamy and allowing a wife unilateral repudiation as a form of divorce. There are no comprehensive data to assess the levels to which women are indeed adding such stipulations and the impact of doing so. However, women are not yet signing marriage contracts on their own in large numbers, with women only doing so in around 21 percent of marriages in 2010, a level mostly unchanged since 2007.2 One possible factor is the strength of social norms that counter this new right for women.
Although the Moudawana raised the minimum age of marriage for girls from fifteen to eighteen, equalizing it with that for boys, an exception was reserved allowing both boys and girls to be married between the ages of fifteen to eighteen with the consent of a judge. However, courts have not been an effective check on the increase in underage marriages. The number of underage marriages per year increased from 38,331 in 2007 to 44,134 in 2010. Moreover, the vast majority of applications for underage marriages are accepted by courts — 89 percent in 2007 and 92 percent in 2010. In this context, the burden of underage marriage falls almost exclusively on girls. In 2010, 99 percent of requests for approval of underage marriage made to courts involved girls, a percentage that has not changed since 2007.3 Girls married as minors face certain risks. Data shows that marriages involving minor girls tend to result in divorce and re-marriage, with 62 percent of women in a second or greater marriage reporting their first marriage took place before age eighteen.4 Domestic violence rates for married women are highest among younger women, particularly for those between the ages of eighteen and twenty-four. Although girls under the age of eighteen were not included in the survey, data suggests that the younger the age of a woman at marriage, the more likely she is to be subjected to domestic violence.
Control of Marital Property: The default marital property regime in Morocco remains separate property, under which spouses remain the legal owners of any assets registered to them acquired during, or prior to, their marriage. In case of divorce, each party takes from the marriage any assets registered under their names. The Moudawana now allows married couples to sign a contract— separate from the marriage contract— establishing the terms under which assets acquired during marriage are managed. One option is for married couples to establish a community property regime whereby any assets acquired during the marriage are considered jointly-owned and evenly divided upon divorce.
A community property regime is particularly beneficial to a spouse who is outside of the formal labor force, and performs primarily non-compensated tasks related to the household. Moroccan civil society organizations (CSOs) have offered assistance to women in arranging favorable provisions in these contracts. However, there are no comprehensive data available as to the extent to which married couples are entering into such agreements. Given the relatively low labor force participation of women, these arrangements could prove beneficial in terms of increasing women’s control of economic assets both during marriage and after divorce.
Access to Divorce: The primary effect of the changes to the Moudawana on divorce was to provide women with the ability to initiate divorce without having to show some type of cause by their husbands, such as lack of financial support, failure to abide by the marriage contract, abandonment, harm or absence— all of which have placed considerable burdens on women. Apart from showing cause, women could obtain divorce only by renouncing their financial rights, such as rights to their dowries and alimony, through a process known as ‘khul’. However, for many women, especially the poor, these interests might be the only considerable financial asset for the divorced woman, especially given the low labor force participation of married women in Morocco. Women can now seek divorce by mutual consent, which requires the consent of both parties, and by citing irreconcilable differences, which can be initiated by either husband or wife.5 Available data suggests a positive trend away from khul and toward divorce based on the mutual consent of husband and wife, with the latter allowing women access to financial assets. In 2007, nearly one-third of divorces were done through the ‘khul’ process, with this rate dropping to just over 20 percent in 2010.6 In the meantime, divorces based on mutual consent of the spouses rose from 30 percent of divorces in 2007 to 46 percent in 2010.
1 Enquête nationale sur la prévalence de la violence à l’égard des femmes (ENPVEF), Haut Commissariat au Plan (2009).
2 Femme Marocaine en Chiffres, Tendances d’évolution des caractéristiques démographiques et socioprofessionelles, Journée Nationale de la Femme, Haut-Commissariat au Plan, Royaume du Maroc (2012).
3 La Femme Marocaine en Chiffres, Tendances d’évolution des caractéristiques démographiques et socioprofessionelles, Journée Nationale de la Femme, Haut-Commissariat au Plan, Royaume du Maroc (2012).
4 ENPVEF, Haut Commissariat au Plan (2009).
5 Men can still unilaterally repudiate the marriage, though this now requires judicial consent whereas before it could be done verbally in the presence of witnesses. Women are provided this option only if this stipulation is included in the marriage contract, which in turn requires a husband’s consent.
6 Ibid, Footnote 2.