Mudawana

Family code in Moroccan law

The Mudawana (or Moudawana, المدوّنة), short for mudawwanat al aḥwāl al shakhṣiyyah (مدونة الأحوال الشخصية, ), is the personal status code, also known as the family code, in Moroccan law. It concerns issues related to the family, including the regulation of marriage, polygamy, divorce, inheritance, and child custody. Originally based on the Maliki school of Sunni Islamic jurisprudence, it was codified after the country gained independence from France in 1956. Its most recent revision, passed by the Moroccan parliament in 2004, was praised by human rights activists for its measures to address women's rights and gender equality within an Islamic legal framework. Although there were calls for reform to the family law in the 1960s and 1970s, its religious origins made amending it a challenge, and no serious movement for reform emerged until the 1980s. As a result of newly created civil society organizations, including many women's organizations, and increased international attention on women's rights, modest reforms to the Mudawana were enacted in 1993 under King Hassan II. Following this initial change, increased activism resulted in the articulation of a Plan of Action for the Integration of Women in Development, which drew heavily from secular, rights based frameworks. This sparked fierce debate and opposition within Moroccan political elites and, to a somewhat lesser extent, Moroccan society and culminated in two rallies in Casablanca and Rabat in March 2000 – one in support of reform and one in opposition to it. This occurred shortly after Mohammad VI succeeded his father as King, and within a year of the rallies, he announced the formation of a commission to further reform the Mudawana. In 2003, he announced his intention to replace the code entirely, citing his authority as both spiritual and political leader of the nation, and by January 2004, the Moroccan parliament had ratified the new version. Major components of the reforms included raising the minimum legal age of marriage to 18 for men and women, establishing joint responsibility for the family among men and women, limiting the terms of polygamy and divorce, and granting women more rights in the negotiation of marriage contracts, among other provisions. Supporters of the reforms point to broad support for them among Moroccan society, especially among women, and cite the new law as a successful example of a progressive reform framed in indigenous, Islamic principles. Critics of the reforms point to the elitist roots of the movements that advocated for the reforms, the influence of Western secular principles, and the many barriers to the law's implementation within Moroccan society.

Malik ibn Anas, the founder of the Maliki school of Sunni Islam, wrote Al Muwatta, which was an 8th century collection of hadith, or sayings, of Muhammad, his family, and his companions. These sayings were collected and published by Malik, along with commentary. This formed the foundation of one of the four major Sunni schools of Islamic jurisprudence still in existence today. The Maliki school has been the dominant source of Islamic jurisprudence in Morocco since the 10th century.

Morocco has been described as a "liberalized autocracy." Its constitution grants the majority of executive powers to the monarch, including the power to appoint major ministers and regional governors, and the power to set the priorities of the national agenda; this effectively limits the power of political parties and the elected members of Parliament. Many argue that the electoral system's main function is to serve as a means for the monarchy to create and manipulate a dependent class of political elites. Practically speaking, despite multiparty elections, the monarchy, and not parliament, is the site of strategic political decision making in Morocco. The King is not only a political leader, but also holds the title "Commander of the Faithful," indicating his role as a religious leader as well. The royal family of Morocco, which claims descent from Muhammad, therefore enjoys a sense of political legitimacy rooted in Islam and also has the power to dictate the form that Islam takes within Moroccan society. Generally speaking, the monarchy, Islam, and the territorial integrity of the Moroccan nation are considered to be the nation's three inviolable "sacred institutions." Challenges to these three institutions, whether through questioning the king's authority or the legitimacy of Islamic law as the basis for legal codes, are technically imprisonable offenses. As the French had ruled Morocco with a policy of legal pluralism (maintaining, for example, the existence of Berber customary law within Berber communities), the new Mudawana was intended to signify the nation's unity, Islamic identity, and modernity. In addition, the Mudawana is the only section of Moroccan law that relies primarily on Islamic sources, rather than Spanish or French civil codes, which gave it a greater sense of immutability and contributed to the difficulty of reforming it later on. A state's family or personal status law has wide ranging implications for citizens' daily lives, but many gender equality advocates point out its particular significance for women, as it governs the age at which they may be married, issues of divorce and child custody, and their right to work and travel outside the home. Even as various Muslim majority states have expanded public civil and political rights for women, separate family laws rooted in Shari'a have often remained unchanged; for many Muslims, these family laws remain an untouchable symbol of Muslim identity.

In 1969, King Hassan II created the Union Nationale des Femmes Marocaines (UNFM), an organization with the stated goal of improving the social and economic status of women in Morocco. The activities of the UNFM focused less on legal reform and more on professional and training programs for women. It was given the legal status of a utilité publique, an important designation for Moroccan civil society organizations, which allows them to raise funds and be exempt from taxes (similar to non profit status in the United States). Historically, this distinction, which must be conferred by the government, has provided a way for the Moroccan regime to exert a measure of control over civil society organizations, as those whose agendas conflict with that of the government typically find it difficult to obtain utilité publique status. It was in this environment that calls for reform to the Mudawana first began to gain traction. All of Morocco's major women's organizations have positioned their work within an Islamic framework in some way, drawing on the work of Islamic scholars to inform their agendas. Arising from this context, the PAIWD did not explicitly reference Islamic values, and was more closely related to a "development discourse" that formed a crucial element of Mohammad VI's national agenda.

On 5 March 2001, a year after the rallies in Casablanca and Rabat, Mohammed VI announced the formation of a commission to reform the Mudawana, members of which included a Supreme Court justice, religious scholars, political representatives, and intellectuals from a number of different backgrounds, including female representatives from women's organizations. At the same time, the king took several steps viewed as promoting women's status in Moroccan society, including mandating that 10 percent of seats in the lower house of the Moroccan parliament be reserved for women and promoting several women to senior administrative positions within his government. On October 10, 2003, the king presented Parliament with a plan to replace the old Mudawana entirely, on the commission's recommendation, describing the new law code as "modern" and intended to "free women from the injustices they endure, in addition [to] protecting children’s rights and safeguarding men’s dignity." After the reforms were announced, the United States government, the World Bank, and Human Rights Watch all released statements of support for the new laws.

According to a 2010 survey, awareness of the reforms varies widely within the Moroccan population, with younger, urban, and educated women far more likely to have heard of the law and have some familiarity with its provisions than women in rural areas, those with less education, and older women. Of Moroccans who have heard of the new Mudawana, 85% of women and 59% of men support the reforms. Most men who oppose the reforms believe the law negatively impacts them, gives greater weight to their spouses' demands, and view it as contrary to their religious beliefs. Women's dissatisfaction with the Mudawana, however, reflects a belief that it is not implemented widely and successfully enough to address the problems of women's rights. Two thirds of Moroccan women surveyed said they felt the new Mudawana had improved women's status in Morocco, and 50% of men agreed. Finally, some characterize the high degree of debate and deliberation over the issue as a dividing influence in the end; a representative from one Moroccan women's organization described the women's movement in Morocco not as a movement, but an uncoordinated group of different organizations. From a legal standpoint, the Moroccan penal code still does not reflect the principles of gender equality established within the provisions of the Mudawana. For example, a woman still needs her husband's permission to obtain a passport and can be penalized for having a child out of wedlock, and there is no legislation addressing or criminalizing violence against women. Judges also retain the right to oversee mandatory reconciliation in the case of divorce, which many women's organizations fear will be used to limit women's autonomy during divorce proceedings. The argument that follows is that the reforms are essentially superficial because it is in the government's interest to favor the maintenance of the status quo over the potential conflict that would arise were the reforms to be implemented on a full scale. Some reports claim that marriage of underage girls has actually risen since the passing of the reforms, and point out that the actual existence of separate marital property contracts remains low, despite their being newly legalized, meaning that the reforms offer little actual protection to women whose husbands order them to leave the marital home. Rabha El Haymar is an example of a Moroccan woman who used the changes to argue for the rights of her illegitimate child. Her bravery, in taking the risk of reputational damage, was the subject of a documentary on Moroccan TV and she was recognised internationally for her stand on women's rights in 2024.

The Mudawana and the status of Moroccan women are the subject of Lalla Mennana, a song by the popular Moroccan hip hop group Fnaire. The 2008 film "Number One," produced in Morocco and scripted in Moroccan Arabic with French subtitles, is a comedy portraying the effects of the new Mudawana from a male perspective.