Amending Family Code requires clinging to Moroccan identity and an open Islam, says expert

Amending Family Code requires clinging to Moroccan identity and an open Islam, says expert

Ahead of the beginning of the committee’s work on the Family Code amendment, many Moroccans voiced their opposition to the change, claiming that the change is a response to Western norms. 

Others, on the other hand, believe that further updating the family code will result in “dispersing the Moroccan family,” citing the rise in divorce rates since discord divorce was legalized, which allows a woman to divorce her husband.

To further delve into the subject, MoroccoLatestNews interviewed Zhour El Hor, a member of the Royal Advisory Committee to Review the Personal Status Code, a judge and former president of the Family Court, a member of the National Council for Human Rights, and a current lawyer, about the various concerns that Moroccans express regarding the Family Code.

El Horr believes that changing the Code must take place “within the framework of our identity and the framework of our religion; But in a modern and civilized way that guarantees justice and fairness for all family members, because some jurisprudential opinions have become outdated and we must strive to find solutions appropriate to our time and reality.”

First, what are the reasons for amending the Family Code?

What should be emphasized is that the Family Code is not the only one that requires amendment and change. Indeed, there are several legal texts that in turn require amendment, such as the criminal law, the civil law, the sponsorship law, the civil status law, the nationality law.

All of these laws need amendments and reform, because society develops and changes, and our society today is not the same as twenty years ago, the date on which the current Family Code was implemented.

There is another reason for calling for reforming the Family Code, which is that the circumstances in which the Personal Status Code was reformed were strong tensions between supporters and opponents of the amendment, and there was very intense debate and polarization, and at times matters almost got out of control, and had it not been for the intervention of King Mohammed VI and the support of The matter was referred to the Royal Commission in charge of reviewing whether the Code was to be amended.

Some matters were raised, but we were not able to crystallize them, because the committee in which I was a member was composed of twelve jurists and scholars and only three women. Unfortunately, all the jurists who were members of the committee were not enlightened, aware, and familiar with reality.

These jurists found solutions to the problems of their time, but there are emerging problems in our current reality that must be solved, without compromising the essence of Islamic law, because society is changing at an amazing pace and is witnessing major transformations. 

Therefore, the laws regulating relationships within society and the family must evolve according to the development of society.

Through implementing the code and putting it to work, gaps, imbalances, and some contradictions emerged that were not in line with Islamic law. I am a Muslim and Moroccan, and I read what was available from the Islamic Charia, and I found that it does not include matters for which there are no solutions. On the contrary, our religion is a religion of ease, not a religion of hardship.

Do you think that the conditions currently became suitable for developing perceptions that the environment in 2003 did not help to materialize?

I think the current environment will be helpful, based on my practice in the field of the judiciary as a former judge and president of a family court, and currently a lawyer, and as a former member of the Royal Advisory Committee to review the Personal Status Code, I have noticed some gaps that require reform.

For example, the marriage of a minor. I believe that a girl under the age of eighteen is not qualified to bear the responsibility of starting a family, and her place is in school or a training institute.

There are also provisions in the Family Code that raise difficulties in application, which makes reforming the Code necessary and obligatory, such as sharing the money earned during the marital relationship, as we found that the wife participates in spending, and contributes financially if she works, and she also bears responsibility for managing the house and raising the children… but all family property is written in the husband’s name, and when divorce occurs, she is deprived of her right.

Article 49 of the Family Code addressed this issue, But it is not clear enough to be well applied by judges.

Even from an Islamic law standpoint, experts have found a solution to this issue, and there is what is known as “toil and endeavor,” which gives the woman the right to the money she worked hard and contributed to collecting during the marital relationship if divorce occurs.

There is also the problem of the custodial marriage. After divorce, custody is given to the woman, but if the child reaches seven years of age and she gets married, custody of her child is taken away from her, and this is not in the child’s interest.

One of the reasons for amending the Family Code is also the issue of lineage, and this is a very important point, as there are several children whose fathers are known, and DNA testing proves this. However, it is not taken into account.

I do not understand by what logic the existence of lineages is acknowledged, biologically, yet, the child is not attached to his father if the latter denies being a father.

Some believe that adding more “modernity” to the family code will lead to attacking the principles of the Islamic religion?

There is no justification for fear of deviating from the principles of the Islamic religion because our jurists and scholars can work hard and find a solution to any problem.

Here, I return to the issue of lineage to point out that judges do not even take genetic results into account, even though it is very accurate in determining the child’s lineage, all because the child was not born from a legal relationship. 

I say that the child must enjoy his lineage, whether it is from a legal relationship. or illegal, so that his biological father bears responsibility for him, instead of placing the responsibility on the mother alone.

The issue of bullying against girls also poses a major problem, as we saw how daughters were removed from their family homes after the death of their fathers, as the father’s relatives intervened to demand their share of the inheritance and sold the house, and this issue requires reconsideration.

I am a moderate person, and I say that issues that contain definitive texts should not be delved into at present, and His Majesty the King has confirmed that he will not permit what is forbidden and will not prohibit what is permissible.

But it must be pointed out that people delve into matters without being aware of them. 

In the issue of division in inheritance, for example, a woman inherits more than a man in many cases, and they do not know it. Then, if the man inherits more than the woman, it is because he is obligated to support her… That is, we are faced with a system whose aspects must be understood.

Many Moroccans link the spread of divorce to the family code. What is your response to that?

Divorce due to discord, which was brought about by the Code, and which everyone now resorted to, was based on a reconciliation procedure, which is confirmed by its stipulation in three chapters. 

That is, before the judge rules on divorce, he must apply the reconciliation procedure, and this must be done according to many conditions, such as that it takes place in a secret room, that the parties be summoned to him, and that there be a ruling from his family and a ruling from her family…but unfortunately, this process failed in courts.

Meaning that the text was written without providing the conditions for its application?

Yes, the problem is with the implementation, because the judge does not have the techniques and mechanisms for reconciliation. The judge applies the law and does not have time to implement the terms of the settlement, due to the large number of files he goes through every day.

Reconciliation and mediation are an art and a science taught in universities. We suggest that the mechanism of reconciliation be removed from the judge and that it take place outside the court. This is done through special centers or offices, especially since when a person enters the court, his degree of reconciliation is very weak, and each party seeks to prevail over the other party by any means.

So, we can say that the prevailing impression among some Moroccans that the code contributed to the widespread divorce rate is correct?

Yes, we can agree with this. In the code, there are twelve reasons for divorce. But currently, divorce is mostly resorted to due to discord and divorce by agreement. The husband and wife come to court, and on the same day they get divorced, which is unreasonable.

The problem lies in applying the provisions of the Family Code related to divorce. Not in the requirements themselves. Therefore, what is important is not to prepare laws and make them modern, but rather, to provide mechanisms, tools, and human resources to implement these laws.

Divorce due to discord came to provide justice to women who wanted a divorce and were not able to do so before the implementation of the current Family Code. 

But it must be recognized that divorce should not take place in the way it is currently taking place, and it must be framed with rules to prevent its spread. 

Otherwise, it will lead to the dispersion of the Moroccan family, and we will turn into a society in which solidarity is absent, social ties are undermined, and family foundations collapse, and this is not in our interest. 

What is your response to those who say that Morocco is subject to Western pressure to further modernize the chapters of the Family Code?

Reforming the Personal Status Code was not imposed by the West, rather, it was a response to the demands of those concerned, including officials, civil society bodies, and political parties. This is human work that requires review and amendment according to what necessity dictates, within the framework of our identity and our religion.

As I said previously, I trust in His Majesty the King, who said that he will not permit what is forbidden and will not prohibit what is permissible. I believe that the skill of our scholars and jurists in finding solutions to the various problems raised gives hope that we will reach a code capable of correcting the various defects.

The Moroccan identity must be present in reforming the family code, and we are not required to be like France or Germany.

Rather, we must preserve and cling to our Moroccan identity and our Islamic religion, and adhere to Morocanness without being led by the West, but in a modern and civilized way that guarantees justice and fairness for all family members, because some jurisprudential opinions have become outdated and it is necessary to strive to find solutions appropriate to our time and reality.


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