Divorce in Morocco: Types and Procedure
If you are considering ending your marriage in Morocco, you will quickly discover that the word "divorce" covers several very different legal realities. The Family Code distinguishes amicable divorce, divorce in return for compensation, judicial divorce for discord, and reconciliation after separation. Each follows its own procedure, and all now pass under the supervision of the court.
The essentials in brief
In Morocco, divorce is no longer a private matter settled between yourselves. Since the reform, it is subject to strict judicial supervision [Art. 73]. You first ask the court for authorisation to have the act drawn up by two adouls [Art. 79]. The court systematically attempts to reconcile you before anything else, and if there are children, it carries out two attempts spaced at least thirty days apart [Art. 82]. Depending on your situation, your case will take the form of an amicable divorce [Art. 114], a khol' (khula) [Art. 120] or a discord procedure [Art. 95].
Divorce is no longer a private act
Let us start by dispelling a received idea. In Morocco, one does not divorce by a word spoken at home. Divorce may be expressed verbally in explicit terms, in writing, or by an unequivocal sign when the person is unable to express themselves or to write [Art. 73]. But form is not enough. Divorce is now subject to the following judicial supervision in accordance with newly defined conditions and procedures, and it is validly recorded only at the moment the act is drawn up by the two adouls [Art. 73].
Who are these adouls? They are the notaries of Muslim law, empowered by the court to draw up family civil-status acts, including the divorce act.
In concrete terms, anyone wishing to divorce must first ask the court for authorisation to have the act drawn up by two empowered adouls [Art. 79]. Not the other way around. You do not file a ready-made act; you request an authorisation, and the adouls intervene only afterwards. Divorce is the dissolution of marriage, exercised by the husband as well as by the wife when she enjoys this right, within the framework of a procedure applied under the supervision of the court [Art. 79].
Why all this formalism? The stated objective is clear: to preserve the conjugal bonds from any trifling and any abuse, to guarantee the rights of the divorced wife and the children, and to strengthen the mechanisms of settlement through the attempt at reconciliation [Art. 79]. Remember that word. Reconciliation. It returns at every stage.
The competent court is not left to your choice either. The request is addressed to the court of the marital home; failing that, to the court of the wife's domicile or place of residence, or else to the court within whose jurisdiction the marriage contract was concluded, and in that precise order [Art. 79]. Honestly, this is where many cases fall behind: the wrong jurisdiction is seised.
The attempt at conciliation, an unavoidable stage
Before pronouncing anything, the court seeks to bring you back together. This is not a courtesy. It is an essential formality that cannot take place in the absence of the spouses concerned [Art. 82]. The legislator therefore gives a mandatory character to the personal presence of both spouses at the conciliation hearing [Art. 82].
And the court does not merely listen. It may appoint two arbitrators from among the members of the two spouses' families with a view to reconciliation, after satisfying itself of their morality, their wisdom and their moral influence over the couple [Art. 82]. Failing family arbitrators, it may resort to empowered third parties, call on the family council, or delegate one of its own members [Art. 82].
The detail that changes everything: if there are children. When the spouses have children, two conciliation attempts must be carried out, spaced at least thirty days apart [Art. 82]. A single hearing does not suffice. Time is part of the procedure, deliberately. In case of success, a record is drawn up and certified by the court so that it may be referred to if needed [Art. 82].
If you arrive at the hearing thinking conciliation is a mere box to tick, you are mistaken about the procedure.
Amicable divorce: by mutual consent
Here is the most peaceful route. The spouses may agree on the principle of ending their conjugal union, either without conditions or with conditions, provided these are not incompatible with the Code and do not harm the interests of the children [Art. 114].
The benefit? Discretion and flexibility. This route answers the wish of spouses who do not want to disclose the causes of the dispute through court pleadings, and it brings flexibility to the couple's relations, in particular with regard to the children [Art. 114].
The procedure is light, but it remains judicial. In case of agreement, the request is presented to the court by both spouses or by one of them, accompanied by the document establishing the agreement, in order to obtain authorisation to draw it up [Art. 114]. Even here, the court attempts to reconcile the spouses as far as possible; only if reconciliation proves impossible does it authorise the recording of the divorce [Art. 114].
The agreement may also provide for financial or other compensation, in one of three configurations: settlement of the compensation by the husband, settlement by the wife, or the absence of any compensation [Art. 114].
Once the authorisation is obtained, the countdown begins. The divorce act is drawn up at the initiative of the authorised husband within a period not exceeding fifteen days from receipt of the authorisation [Art. 114]. Fifteen days. Not a month. Amicable divorce is swift, but it does not forgive administrative negligence.
The khol' and divorce for discord
What happens when the agreement is only partial, or nonexistent? Two mechanisms take over.
The first is khol': divorce in return for compensation. The wife obtains the dissolution of the marriage in exchange for a sum. If the spouses agree on the principle of khol' without agreeing on the consideration, the matter is brought before the court for an attempt at conciliation [Art. 120]. If reconciliation proves impossible, the court declares the khol' valid after assessing the consideration, taking into account the amount of the sadaq (the dowry), the duration of the marriage, the causes of the request and the wife's material situation [Art. 120]. For a minor wife, the court takes her interest into consideration in the assessment [Art. 120].
And if the husband refuses? The law provides for the deadlock. When the wife persists in seeking divorce and the husband refuses to act on it, the request may be decided using the discord procedure, without the need to open a new file [Art. 120].
This is the second mechanism: divorce for discord, or chiqaq. It targets the deep and permanent disagreement that sets the two spouses against each other to the point of making the continuity of the conjugal bond impossible [Art. 95]. One of the spouses, or both, ask the court to decide; the court must undertake an attempt at conciliation and delegates for this purpose two arbitrators, one taken from the husband's family, the other from the wife's [Art. 95].
Discord also works as an emergency exit in other situations. If, after an attempt at reconciliation, the wife refuses to return to the marital home, she must not be compelled to do so and may resort to the divorce-for-discord procedure [Art. 124].
Judicial divorce based on one of the legal grounds is time-bound: except in cases of absence and particular circumstances, it is decided within a maximum of six months after the attempt at reconciliation [Art. 113]. The court also rules, where appropriate, on the rights due to the wife and the children [Art. 113].
One question, to close this section: do you want to save time or avoid exposing your disputes? The answer guides the choice between amicable divorce, khol' and discord.
References
- [Art. 73] — Family Code (Moudawana, Law No. 70-03)
- [Art. 79] — Family Code (Moudawana, Law No. 70-03)
- [Art. 82] — Family Code (Moudawana, Law No. 70-03)
- [Art. 95] — Family Code (Moudawana, Law No. 70-03)
- [Art. 113] — Family Code (Moudawana, Law No. 70-03)
- [Art. 114] — Family Code (Moudawana, Law No. 70-03)
- [Art. 120] — Family Code (Moudawana, Law No. 70-03)
- [Art. 124] — Family Code (Moudawana, Law No. 70-03)
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