All speak of a “humiliation”. For Ilham, it had to be a formality: “I wanted to enroll my son in a school closer to my home, but his father objected. Dounia wanted to open a bank account in her daughter’s name: “Her dad wouldn’t give me permission. As for Nadia, she simply wanted to travel: “I dreamed of taking my two children to France for a few days. When I asked my ex-husband to agree, he refused. For women divorced from a Moroccan husband of Muslim faith, these steps and others, such as the establishment of administrative papers, are impossible to carry out without the consent of the father.
“He remains the sole legal representative of the children. Following a divorce, custody is almost always given to the mother, but guardianship automatically returns to the father, unless he disappears or is incapacitated, notes Zahia Ammoumou, lawyer and legal consultant for the Tahadi association for equality and citizenship. This injustice leads to situations that can turn out to be dramatic. A child who needs to be hospitalized urgently, for example, will only be accepted in a clinic or hospital if the father authorizes him to do so. »
In Morocco, equality between women and men is enshrined in the 2011 Constitution, but family law remains governed by the family code, the Moudawana, whose reform in 2004, which allowed women to request a divorce, was presented at the time as “an unprecedented social advance”. Twenty years later, activists are bitter. “We quickly became disenchanted, recognizes Khadija El Amrani, lawyer and member of a collective that works for the reform of fundamental freedoms. The Moudawana allowed women to separate from their husbands without their consent, through the divorce process for discord. It was a considerable step forward, but the post-divorce period was not thought out with the same desire for change. The mother educates, takes charge, but has no rights over the child. »
Since 2004, the number of divorces has continued to increase in Morocco. According to the High Commission for Planning, 3.3% of Moroccan women over the age of 15 were divorced in 2020, or about 450,000 people. The Superior Council of the Judiciary (CSPJ) indicates that more than 500,000 divorce cases were registered with the courts of first instance between 2017 and 2021. For 100 marriage license applications filed during this period, 50 divorce cases were registered.
“Derisory” pensions
“There is real distress among divorced mothers,” notes lawyer Youssef Fassi-Fihri, who says he has become aware of “the urgency to thoroughly review the family code”. In particular, its article 175, which deprives the mother of custody of her child in the event of remarriage if the latter has reached the age of 7. “This rule makes no sense, it’s not even in the Koran,” says Ali Kettani, a lawyer specializing in divorce cases.
Another anomaly noted by proponents of reform is the amounts required by the courts for alimony. “The national average is 400 dirhams per month per child [i.e. 36 euros], observes Youssef Fassi-Fihri. There is also an indemnity, around 100 dirhams, which is issued in return for custody. What can a mother do with these sums supposed to enable her to feed her child, to clothe her, to send her to school? It’s revolting. The father’s housing costs are also considered “derisory”. “They fluctuate between 300 and 3,000 dirhams depending on income,” continues the lawyer. In a city like Casablanca, getting decent accommodation at this price is almost impossible. »
“More than 70% of the workers are in the informal sector and many others in family businesses. It is easy under these conditions to present to the judge incomes that do not correspond to reality in order to reduce the amounts of pensions, ”underlines Ali Kettani, who pleads for the establishment of controls and a scale of maintenance payments: “The judge is now sovereign in setting their amounts. This discretionary power must be reduced to avoid abuse. »
Among the countless testimonies of “humiliated” mothers, however, emerge some victories. Like this decision, rendered in 2022 by the Midelt court of first instance, asserting the interests of the child to reject a request for withdrawal of custody on the grounds that the mother had remarried. “An exceptional judgment that still needs to be confirmed on appeal to establish case law,” warns Khadija El Amrani.
“A divisive subject”
In July 2022, in his annual Speech from the Throne, King Mohammed VI paved the way for a reform of the Moudawana, saying that the code “represented a real leap forward” but that it “is no longer enough as such”. “We need a full and complete revision, not a simple grooming”, reacts Nabil Benabdellah, secretary general of the Party of Progress and Socialism (PPS), who recalls the monster demonstrations, at the call of the Islamist formations of the Party of Justice and Development (PJD) and Al Adl Wal Ihsane, which took place in the early 2000s against the proposed reform of the code.
In 2021, the Special Commission on the Development Model (CSMD) had already noted the difficulty of debating certain issues “directly linked to religious precepts”, such as legal guardianship in the event of divorce. “In terms of values, Morocco is a conservative country and the reform of the code a divisive subject, admits Khadija El Amrani. But the next elections will not take place before 2026, it is the right time to change the texts. »
The National Rally of Independents (RNI), party of the current head of government, has set up a working group led by Amina Benkhadra, director general of the National Office of Hydrocarbons and Mines (Onhym) and president of the national federation of women of the party, confides a close friend of the formation. In June, the Authenticity and Modernity Party (PAM), from which the Minister of Justice came, received the Tahadi association, which gave it its recommendations. “The reception has been very positive,” says Zahia Ammoumou.
“We will present a memorandum in September with several proposals, including the possibility for the mother to obtain guardianship without conditions and that custody of the child will no longer be taken away from her if she remarries,” said Nabil Benabdellah, of the PPS. In an online survey conducted in 2022 by the Economic, Social and Environmental Council (CESE), nearly 80% of respondents considered that legal guardianship should be assumed by both parents.
