Family Law in Morocco

The most important family law applicable to Muslims in Morocco is the 2004 Family Code (Mudawana)[1]. This Code is regarded (along with the Tunisian Code) as relatively reformist compared to other such family law systems within the region in that, for example, it set the minimum legal age of marriage at 18 for men and women, established joint responsibility for the family among men and women, limited the terms of polygamy and divorce, and granted women more rights in the negotiation of marriage contracts.[2] It is based on the principles of the Maliki school of law within Sunni Islam. An unofficial English translation is hosted on the website of the women’s Learning Partnership here. The preamble to the Code states that one of its fundamental reforms is to:

Protect children’s rights by inserting provisions of international conventions ratified by Morocco into the Mudawana. Children’s interests with respect to custody are also guaranteed by awarding custody to the mother, then to the father, then to the maternal grandmother. Should this prove impossible, the judge will entrust custody to the most qualified relative. Furthermore, the child under custody is guaranteed suitable accommodation, separate from the other financial maintenance obligations, and cases concerning maintenance obligations must be settled swiftly within a one-month time limit.

After the adoption of the Mudawana, a new system of family courts was also set up to deal with family law matters and a training program for family judges was put in place.[3]

Some analysis of the Mudawana by The Centre for Public Impact can be found here.

On 22 August 2002, Morocco ratified the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the Child Protection Convention’). On 9 March 2010 Morocco acceded to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Morocco ratified the Convention on the Rights of the Child (CRC) in 1993. It has one reservation against Article 14, which provides for freedom of religion.

[1]Sherifyan Dahir (Royal Edict) n° 1.04.22 issued on 12 Dou Al Hijja 1424 (February 3, 2004) To implement Law n° 70.03 as the Family Code

[2]Wuerth, Oriana (2005). “The Reform of the Moudawana: The Role of Women’s Civil Society Organizations in Changing the Personal Status Code of Morocco”. Hawwa 3 (3): 309–333

[3]Harrak, Fatima (2009) “The History and Significance of the New Moroccan Family Code” Institute for the Study of Islamic Thought in Africa (ISITA) Working Paper Series, No 9-002. March 2009

Legal System of Morocco

The Kingdom of Morocco operates a codified civil law system on the Egyptian/French model. The most recent Constitution was adopted in 2011 (Arabic & French, Bulletin Official; English, constituteproject.org translation).

Courts in Morocco are regulated by the Decree-Law of 15 July 1974 on the Organization of the Courts (as amended). Article 107 of the constitution states:

Article 107

The judicial power is independent of the legislative power and of the executive power.

The King is the guarantor of the independence of the judicial power.

The ultimate power of review lies with the Supreme Court, beneath which are:

  • the Court of Cassation (formerly the Supreme Council)
  • the appeal courts
  • the courts of first instance (comprising the ordinary civil, labour, family and criminal courts) 
  • the commercial administrative and audit courts
  • the standing tribunal of the Royal Armed Forces
  • the administrative courts
  • the neighbourhood courts (formerly community and district courts)

Some useful information, hyperlinks and a bibliography can be found here.

Family Law Across the Middle East

There is no common family law system that applies from Morocco to Pakistan and from Turkey to Somalia (an area which I am describing as ‘The Middle East’ in a very loose use of that term). The family law system of each state is different – although some have influenced others. Islamic shari’a plays a part in the family law applied to Muslims in nearly all states – sometimes in essentially unvarnished form applied by judges who are religious scholars (as in Saudi Arabia) and sometimes as the inspiration for an essentially codified system administered within a branch of the civil court system by state educated judges with law degrees (as in Iraq).

In my blog posts about the family law of different states within the greater Middle East, I will try to identify the degree to which shari’a plays a part and the way in which that takes place. Even where Islamic law is applied directly, there is no single ‘Islamic law’ applied in every case and in every state or court. Within both Shi’a and Sunni Islam there are different schools of law, with many similarities but both different interpretations of the law and sometimes different ways of reasoning from basic principles to a final outcome.

Family law in Islam is best thought of as part of ‘Personal Status’ law, which also includes inheritance law – which is the part of Islamic law most clearly rooted in express verses of the Qur’an and which will be the subject of a separate blog post.

Many of those who live in the Middle East are not Muslims – and each state also provides for the resolution of disputes involving e.g. Christians. In some legal systems, the same provisions are applied to all – often provisions derived from shari’a principles. In some legal systems, a myriad of different personal status legal systems exist in parallel dealing with different sects – Lebanon being a prime example.

Family Law in Iraq

The most important family law in Iraq is the Personal Status Code[1], Law No. 188 of 1959[2] which applies to all Muslims – Shi’a and Sunni.

Family law in the Kurdistan Region of Iraq is based on the same 1959 Code but is subject to any Kurdish post 1991 amendments.

Article 41 of the Iraqi Constitution states:

“Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law.”

There have been (so far unsuccessful) attempts in Iraq to repeal the Personal Status Code to allow ‘unvarnished’ shari’a to apply to Muslim personal status disputes.

The 1959 Code has been most significantly amended by Laws No. 11/1963 adding Chapter 9 on Inheritance, and No. 21/1978 relating to Women’s Rights in Marriage and Divorce).

Iraq has signed the 1980 Hague Convention the Civil Aspects of International Child Abduction. A 26 March 2018 Letter of Exchange for Cooperation was signed by the senior UK judiciary and Iraqi Federal judiciary.

Family Law in Egypt

In general terms, Egyptian law is codified and (notwithstanding the reference to shari’ain Article 2 of the Constitution) based on the French-style civil law system. However, as is common across the Middle East, family law in Egypt is a ‘pluralistic legal regime’ in that adherents to different faiths have family disputes resolved according to the tenets of their faith. Under Law No 462 of 1955 these disputes have been dealt with in state-run personal status courts which are currently organised under Law No 10 of 2004. The 2004 reform introduced family courts in separate buildings and Family Dispute Settlement Offices at each family court which will attempt to mediate between the couple in contested family matters. A party cannot file an action concerning a personal status matter without first submitting a request for family dispute settlement and judges will not hear cases unless social workers and psychiatrists attempt and fail to achieve a mediated agreement.[1]

Family disputes involving Muslims in Egypt are dealt with according to shari’awith some modifications and clarifications contained in Law No 25 of 1920 and Law No 25 of 1929, both as amended by Law No 100 of 1985 and supplemented by Law No 1 of 2000 and Law No. 4 of 2005 [2]. Article 65 of Law No 1 of 2000 states that the rulings and decisions issued for handing over a young child or contact with the child or maintenance shall be enforceable by the force of law – this applies to children of all faiths.

Family disputes involving Copts in Egypt [3] are dealt with according to the Code of Personal Affairs for Copts.The personal status judges applying this Code are however state appointed judges who are not necessarily Copts.

[1] HRW, Divorced from Justice,December 2004, pp. 52-54

[2] raising the age of custody – sometimes referred to as ‘Suzanne’s Law’ as it was championed by Suzanne Mubarak, wife of the former president

[3] Khalil J, ‘A brief history of Coptic personal status law’ Berkley Journal of Middle Eastern and Islamic Law (2010)

Legal System of Egypt

In the last 100 years, the Egyptian Legal System provided the model for many other nations in the Middle East. Article 2 of the 2014 Egyptian Constitution states that Islam is the religion of the state and that the principles of shari’a are the main source of legislation. Article 3 states that “The principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders”. Article 93 states that “The State shall be bound by the international human rights agreements, covenants and conventions ratified by Egypt, and which shall have the force of law after publication in accordance with the prescribed conditions.”

Egypt’s legal system, legal profession and judiciary are relatively well respected in the Arab world. Many lawyers who are trained in Egypt, staff law firms across the richer gulf countries and beyond although standards of education of both lawyers and judges has been in decline as the numbers educated has increased exponentially in recent decades.[1] The senior judiciary in Egypt has in recent decades been noted for its attempts at professionalism and independence from the state.[2] However the speed of the justice system in Egypt has been the subject of criticism for many years. Criminal cases take on average 4 years to complete and civil cases can regularly take a decade.[3] A first instance decision in the family court can take between 12 to 18 months. A very large number of first instance decisions go to appeal and there are many more re-hearings than in e.g. the English court system.

[1]See Amr Shalakany, “‘I Heard it all Before’: Egyptian Tales of Law and Development,” Third World Quarterly 27, No. 5 (2006): 833-853

[2]See in particular the work of Nathan J Brown includingThe Rule of Law in the Arab World: Courts in Egypt and the Arab States of the Gulf (Cambridge University Press, 1997)

[3]Risley, D, Egypt’s Judiciary, Middle East Institute, 13 January 2016

Family Law in Syria

The 1953 Syrian Law of Personal Status (SLPS) is a comprehensive Code that modifies and regulates many aspects of shari’a. Article 305 of SLPS directs that the residuary source of law is the most authoritative doctrine of Hanafi school of law of Sunni Islam.

Family law for Muslims in Syria is administered by judges sitting in the shari’a personal status courts. Although shari’a court judges administer
family law, they are not religious clerics trained in Islamic jurisprudence. Rather, they are appointed in the same way as other judges working within the courts of general jurisdiction, and they require a law degree, amongst other qualifications.

The Legal System of Syria

The rule of law in Syria is somewhat geographically dependent. Syria is not a fully functioning state. It has been in a state of civil war since 2011. Parts of Syria are outside of central government control and the justice system has collapsed in parts of the country.

Article 3 of the 2012 constitution states that Islamic jurisprudence shall be a major source of legislation. As throughout the Middle East, the influence of shari’a has always been particularly strongest in family and inheritance law matters. However in practice the Syrian legal system, including in the area of family law, is a largely codified civil law system on the French / Egyptian model.

Family Law in Lebanon

Article 9 of the 1926 Lebanese Constitution guarantees that the personal status and religious interests of the people are respected, whatever religious sect they belong to. Decree 60 L.R. (13 March 1936) of the French High Commissioner, who also exercised the duties of the legislative authority during the French mandate in Lebanon, granted the recognized religious denominations in Lebanon the right to administer their own affairs and the right to legislate and pass judgement in respect of issues of personal status, with the limits of the Constitution, existing legislation and the rules of public order. Article 2 of the Lebanese law on Personal Status (3 April 1951) expressly stipulates that “denominational jurisdictions have authority (concerning matters of): marriage contract, its conditions and marital obligations as well as the validity or non-validity of the marriage…..”. This includes child custody.

Matters related to personal status (inheritance, marriage, divorce and child custody) are governed by a separate set of laws designed for each of the different sectarian communities and those laws are administered either by a separate judicial tribunal system or by a combination of a community based system with the national civil system. Although most sectarian communities in Lebanon have adopted a specific personal status code, the examination of the substance of the laws is further complicated by the fact that even where such a code exists, additional sources of laws and foreign legal opinions are considered. For example, the various Christian personal status laws are not limited to the relevant personal status code but also include the canon law of each church, the Bible, apostolic writings, resolutions of the general or local synods, and edicts issued by the patriarchs. In addition, legal opinions in Christian courts are not limited to those issued by Lebanese ecclesiastical courts, but include those issued by high foreign religious tribunals.

In Lebanon, disputes about the application of law by different religious courts can be determined by the civil courts but there is no (non religious) civil personal status jurisdiction in Lebanon. Where parties have only married abroad, the Lebanese courts can apply the foreign law rules to personal status disputes. From time to time, suggestions have been made to reform the sectarian / confessional personal status system – usually involving as a bare minimum at least a choice of a civil (non religious) marriage but efforts at legal reform have failed thus far.

Legal System of Lebanon

Most of the legal system of Lebanon is based on that of France, the former mandatory power until 1943. Lebanon gradually emerged from the French mandate granted by the League of Nations to France after the break-up of the Ottoman Empire in the wake of World War One. Lebanon is considered to be a civil law country and much of the law is codified. Precedent is however influential and cases of higher courts are cited in argument before the lower courts. Personal status matters are determined differently for each of the many different recognised religious communities.

In periods of Lebanon’s history the power of the central state has been very weak, however the ‘rule of law’ has historically been strong within the remit of each sectarian community.