Moroccans assess Moudawana progress
By Siham Ali for Magharebia in Rabat – 09/10/09
King Mohammed VI last year declared October 10th National Women's Day to mark the anniversary of the modernised Civil Status Code. But five years after the introduction of the Moudawana, opinions are mixed as to whether it has yet achieved its lofty intentions.
When Morocco first unveiled the Moudawana on October 10th, 2003, a year before it became law, citizens were hopeful. The Family Law aimed at lifting the injustices imposed on women, protecting children’s rights and safeguarding men’s dignity.
MP and lawyer Fatima Moustaghfir includes a book about the Moudawana with every wedding present she gives, asking the couple to absorb its contents before starting married life together.
Still, implementing its provisions has not been easy for the legal system. The family code, she argued, is suffering from misunderstandings on the part of lawyers, magistrates and the public alike.
"Our magistrates and lawyers have not accorded the Moudawana the importance it deserves, and so they have not gotten to the bottom of it," Moustaghfir added. "Furthermore, the public suffer from an ignorance of judicial matters, while the provisions of the code must be integrated into the secondary education syllabus."
One young woman told Magharebia that her husband married another woman, even though the law required her written consent. Three years passed before she learned that her husband had a second wife.
"He submitted a false certificate of single status, said Halima, 28."What can I do now? Start proceedings against him, accusing him of falsifying an official document? I’m in a quandary, because I have two children and I cannot be the reason why their father goes to jail," she told Magharebia with tears in her eyes. Halima, having no financial resources, has been forced to keep silent.
Women also criticise the way in which the law is enforced by the courts, particularly the length of the proceedings.
Fatimazohra Bahri has suffered years of separation from her children. Even though she is not divorced, her husband "stole" her three daughters, aged 6, 8 and 11, and settled in another town. She instituted custody proceedings against him but could not get the court to rule in her favour.
"My solicitor explained that my case was very difficult because there is a loophole in the law. In fact, the law talks of custody, but only in the case of divorce," she said.
To resolve the many legal loopholes in the Moudawana, charitable associations are calling for reform. Fatima Maghnaoui, director of the Annajda Centre in Rabat, told Magharebia that while the family code is still a considerable achievement for Morocco, it has encountered many problems.
She said that despite great efforts to train judges and civil servants working in this sphere, the law is often applied in a "patriarchal" manner, "to the benefit of the men".
"You can change laws, but to implement them you need to be open-minded. You have to organise awareness-raising campaigns targeting all sectors of society, starting with the judges."
One sign that the legislation needs further modification is that child marriage has increased, despite attempts made by the new law to limit the phenomenon. "Judges are supposed to give permission in exceptional cases. But exceptions have now turned into thousands of cases," Maghnaoui said.
Legal guardianship is another point raised by the association activist. She says that while the Moudawana was supposed to create equality between spouses, women still do not have the right to give their under-age children permission to fill in official documents such as passport applications.
The nafaqa also needs to be implemented, she argued. The fund would pay a food stipend to women who cannot obtain spousal support.
"The government keeps asking how this fund would be financed," said Maghnaoui. "They just need to look at a few solutions such as zakat or levying symbolic taxes on marriage contracts."
Magistrate Zhor El Hor agreed that a family support fund would end the suffering of many women who have no financial resources. "When the husband does not have the money for the food allowance, he risks going to prison. In that case, the women and children will derive no benefit at all from his imprisonment. The fund could pay the allowance to women through the social security," she explained.
El Hor is keen to stress the importance of communication and awareness-raising so that everyone will know their rights and responsibilities.
"Sometimes people complain that the law is not being enforced, when the procedure has not been properly followed due to ignorance on the part of the plaintiffs," she said.
Not all the loopholes in the family code are in the man's favour. There are times when a man too can find himself a victim of legal failures.
Salim, 32, has been struggling for months to get the right to visit his child, even though he is not yet divorced from his wife.
"She has taken my son away from me and moved in with her parents, demanding I divorce her. I still want her. But there’s nothing I can do in terms of the law," he told Magharebia.
Despite the advances made in terms of equality between men and women as a result of the Moudawana, Justice Minister Abdelouahed Radi still sees room for further reform. Last March, on the fifth anniversary of its introduction, Radi called for overhauling the family justice system and improving service for those coming before the courts.
The Ministry is doing all it can to ensure proper application of the Moudawana, he confirmed, citing the role of social workers who evaluate families involved in litigation and present their findings to the courts. Further studies will focus on food allowances, the benefit of mediation during family break-ups, marital asset division and training for those working in the family justice system.
"A fair implementation of the law requires awareness from administrative authorities and courts in order to inform people of their rights when they are affected by the family code," said Fatna Serhane, a law professor at Hassan II University in Casablanca and a member of the Moroccan Human Rights Association.
"Basically, I feel very optimistic and think that things will evolve positively," she added.
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