Procedures in Family Justiceadala.justice.gov.ma/production/Guides_Manuels/fr/PlaquetteANG.pdf ·...

Procedures in Family Justice

Kingdom of Morocco

Ministry of Justice and Freedams

3Procedures in Family Justice

Summary

Introduction ..................................................................................................................4

Marriage ........................................................................................................................5

Marriage of muslim converts and foreigners .............................................................8

Marriage and Divorce of moroccans residing abroad ............................................... 11

Recognition of marriage ............................................................................................. 16

Reconciliation in family cases ..................................................................................... 18

Divorce .........................................................................................................................20

Judiciary divorce .......................................................................................................... 22

Child custody ...............................................................................................................25

Maintenance (Alimony) .............................................................................................. 27

Legal capacity and representation .............................................................................29

Kafala of abandoned children ....................................................................................32

Family solidarity fund ..................................................................................................35

4 Procedures in Family Justice

The Family Code which came into effect on February 5, 2004 is the result of a participatory process based on cooperation and consultation. It constitutes the foundation of a society governed by the criteria of responsibility which guarantee the dignity of citizens and protect their rights.

The Family Code establishes a modern vision consistent with the national and international contexts, and also embodies in its manifestations a social change project, based on the values of justice, equality and dignity for all family members, as well as on improving the legal status of women and children.

Intended for all citizens, these procedures are designed to support the efforts deployed by the Ministry of Justice and Freedoms as part of its strategy aimed at promoting the dissemination of legal information and improving access to family justice.

It also provides an educational support that seeks to strengthen and consolidate awareness and close communication, by providing answers

to key issues related to the implementation of the Family Code, which can be presented as follows :

Marriage; Marriage of Muslim Converts and foreigners; Marriage and Divorce of Moroccans Residing Abroad; Recognition of Marriage; Reconciliation in Family Cases; Divorce; Judiciary Divorce; Child Custody; Maintenance (Alimony); Legal Capacity and Representation; Kafala of Abandoned Children; Family Solidarity Fund.

Besides the English version, other editions of these procedures are also available in Arabic, Amazigh, French and Spanish.

This publication was prepared as part of the Program “Support to the Implementation of the Family Code by Facilitating Women Access to Justice Services” -Gender and Democratic Governance - which is implemented by the Ministry of Justice and Freedoms in partnership with the Ministry of Solidarity, of Women, of Family and Social Development and with the support of the UN Women.

Introduction


The family code contains important provisions relating to marriage, they are as follows :

The authorization to contract marriage

The ratification of a marriage contract by two public family notaries (adouls) necessitates the authorization of the family judge.

The applicant for marriage submits to the family judge the following documents:

1. A request for authorization to contract marriage signed by the applicant or his representative, if needed;

2. A copy of birth certificate of both partners;

3. An administrative certificate for each one of them;

4. A medical certificate for each one of them attesting the absence of any transmissible disease;

5. The authorization to marry in the following cases which are :

• Marriage under the legal age;

• Polygamy in the case of the availability of conditions stipulated in the Family Code;

• Marriage of the mentally disabled person;

• Marriage of converts to Islam and foreigners.

6. A certificate of legal capacity to marry in the case of foreigners, or any similar document;

7. A marriage license for military staff, members of the Royal Gendarmerie, the personnel of the Directorate General of National Security as well as members of Auxiliary Forces, issued by the competent authority.

It’s possible - exceptionally - for the person who cannot attend the public notaries in order to conclude a marriage contract to appoint someone else to replace him in its conclusion.The legal capacity to marry

The age of marriage is 18 years old which is the

Marriage• The authorization to contract marriage• The legal capacity to marry• Marital tutelage• The dowry

• Polygamy • Marriage of the mentally disabled person• The proof of marriage• Assets acquired during marriage


minimum age to get married for men and women. The consent of the legal tutor is a prerequisite to the marriage of a minor. However, the family court may authorize the marriage of a girl or a boy below the legal age of marriage, in a well substantiated decision explaining the minor’s interest and the reasons justifying the marriage.

The decision to authorize marriage, unlike the decision of refusal, is not subject to appeal.

The spouses, who have not reached the age of 18 years old, acquire the civil capacity to sue for all actions relating to marriage, rights and obligations.

Marital tutelage

The woman who has reached the age of maturity can contract her own marriage without a marital tutor; or can delegate her father or one of her relatives to do so.

The dowry

• The dowry is either determined at the ratification of the marriage contract, or its determination may be ignored, which is known as marriage mandate.

• It cannot be agreed on the abolition of the dowry.

• The wife may request the payment of the dowry; whatever the duration of marriage;

and whatever the reasons which prevented her from requesting payment before.

Polygamy

• Polygamy requires court’s approval. So, a man who wants to marry more than one wife has to submit an application that includes the objective and exceptional justification for it and a statement of his financial situation to the family judge.

• The wife may not be convened because of fraud on the part of the husband seeking polygamy, who would have provided an incorrect address or an incorrect name or surname. In this case, the husband is liable to criminal prosecution on complaint of the wife.

• The court will authorize polygamy only:

- If it is exceptionally and objectively justified;

- If the man can maintain the two families, that no injustice is to be feared, and no condition of monogamy has been stipulated;

• If it is proved to the court, after a reconciliation attempt, that the continuity of conjugal life is compromised, and that the wife whose husband is petitioning for polygamy continues to seek divorce, it sets a fixed amount to be paid by the applicant which includes the vested rights of the wife and the children, before continuing the procedure;


• If the wife refuses polygamy, but does not petition for divorce the court applies the procedure of contention.

• After the agreement provided for polygamy, the judge summons the second wife to obtain her consent.

Marriage of the mentally disabled person • The mentally disabled person may contract

marriage.

• This marriage involves obtaining authorization from the family judge.

• The future spouse of a disabled person must have mental capacity; his/her consent must be explicit and included in a formal document.

The récognition of marriage

• A marriage certificate is the recognition of marriage. That is, a marriage certificate is the accepted legal evidence of marriage But in case marriage has not been officially registered for reasons beyond control; the

court looks at the evidence put forth to recognize marriage, if either spouse or both submit a request to the first instance court.

• Testimonial acts, or exchanges of confessions do not take the place of a marriage certificate.

• The action to recognize marriage is admissible for a transition period not exceeding ten years from the date of entry into force of the Family Code (05/02/2004). (Article 16 of the Family Code).

Assets acquired during marriage

• Each spouse has his/her own assets that he/she manages according to his/her will.

• Spouses may - according to their will - agree in a separate document other than the marriage contract, on how to manage and develop the property acquired during marriage.

• In case of conflict, the spouses resort to the judge, who uses elements of evidence to assess each party’s contribution to the marital property.


Marriage of muslim converts and foreigners

The cases requiring the marriage authorization

According to the provisions the article 65 of the Family Code, the authorization of marriage is one of the documents constituting the file to conclude the marriage contract, and this in several cases including the marriage of Muslim converts (even if they are of Moroccan nationality) and the marriage of foreigners (whether both parties are foreign, or one of them is foreign and the other is Moroccan).

Hence, the submission of this authorization is not restricted to mixed marriage; it also includes the marriage of the converts to Islam and the marriage of foreigners.

This authorization must be submitted to certify the act of marriage. It must also be submitted in

the case of the action in recognition of marriage, unless the two parties have a marriage certificate concluded abroad.

The competent authority to issue the marriage authorization

The marriage of Muslim converts and foreigners requires the marriage authorization of the family judge in charge of marriage.

The required documents to get the marriage authorization

To obtain the marriage authorization, the concerned person must submit the following documents:

• A written application addressed to the family judge in charge of marriage containing the applicant’s identity and the request’s subject;

• The cases requiring the marriage authorization

• The competent authority to issue the marriage authorization

• The required documents to get the marriage authorization

• The procedures to be followed to obtain the marriage authorization


• A copy of birth certificate;

• A certified copy of ID card.

Other documents are added according to the following conditions :

Firstly : if the applicant is a Moroccan converted to Islam, he must present a document proving his conversion to Islam.

Secondly : if the applicant is a foreigner, he must present, in addition to the above mentioned papers, the following documents :

1. A certificate of legal capacity to marry delivered to the foreigner by the consulate or the Embassy of his original country certified by the Ministry of Foreign Affairs in Rabat, except for the certificates delivered by the French authorities;

2. The certificate of residence (if he resides in Morocco or a country which is not his original country) taking into account the period of its validity;

3. A copy of the foreigner’s passport (the first 6pages and the page that justifies the date of his entry to Morocco);

4. Four identity photos;

5. A certificate of nationality of the foreigner delivered by his country’s

national authorities or by his original country’s consulate, with the possibility in case of difficulty to get a nationality certificate, to take into consideration other documents such as the marriage competency certificate and the National Identity Card;

6. Islam certificate of the male foreigner.

Thirdly, in the case of mixed marriage the foreigner shall present, in addition to the above mentioned papers, the following documents:

1. A certificate of non criminal precedents delivered to the foreigner by his country’s national authorities or the country of his residence;

2. A certificate of the central criminal record concerning the foreigners delivered by the concerned service at the Ministry of Justice in Rabat;

3. A salary certificate and certificate ofemployment;

4. A marriage authorization delivered by the Ministry of Interior of Oman or Qatar if the applicant willing to marry a Moroccan woman is from Oman or Qatar.


The procedures to be followed to obtain the marriage authorization

The marriage authorization for Moroccan or foreign persons converted to Islam requires only the above-mentioned documents.

In the case of the mixed marriage, the family judge in charge of marriage, or the tribunal -in case of an action of marriage recognition-addresses to the King’s prosecutor in the Family

justice Section at the court of first instance, a writ of inquiry to verify:

• The absence of marriage impediments;

• The professional activity and source of income of the foreigner;

• The conduct and the reputation of the foreign person that should not undermine the security or public order.


Marriage and Divorce of moroccans residing abroad

Marriage of Moroccans Residing Abroad

In regard to the conditions of Moroccans living abroad, they may conclude their marriage contracts either in the services of the country of residence or in the authentication services at Moroccan embassies and consulates.

The conclusion of marriage contracts in the country of residence

Moroccans residing abroad may conclude their marriage contracts according to local administrative procedures of the country of residence, provided that the following required conditions are fulfilled:

1. Offer and acceptance and the legal capacity and the marital tutor if required;

2. The absence of any legal impediments;

3. No intention or agreement to cancel the dowry;

4. The presence of two Muslim witnesse.

• A copy of the marriage contract must be submitted within three months of its conclusion to the Moroccan consular services of the district where the marriage contract was concluded.

• In the absence of a Moroccan Consulate in the country of residence, the copy referred to above must be sent within the same deadline-3 months- to the Ministry in charge of Foreign Affairs and cooperation in Morocco.

• A copy is sent to the civil status officer, in the birth place of each spouse in Morocco.

• If both or one of the spouses was not born in Morocco, the copy will be transmitted to the Family division juridiction in Rabat and

• Marriage of Moroccans residing abroad• The conclusion of marriage contracts in the

country of residence• The conclusion of marriage contracts in

Moroccan consulates and embassies• Divorce of Moroccans residing abroad• Divorce announced in Moroccan courts• Divorce announced in foreign courts


the king’s Prosecutor at the Court of First Instance in Rabat.

In the case of the lack of any condition, it is possible to remedy this deficiency with an appendix which includes the shortcomings in the civil contract, especially the presence of two Muslim witnesses.

• This appendix – after being registered at the family law section records, is added to the concluded contract in accordance with the local legal procedures.

• The contract and the appendix are transmitted to the civil status office and to the family law section in conformity with the same previous procedure.

• The registration of children in the Civil Status Office relies on the civil marriage contract fulfilling the required conditions in Article 14 of Family Code.

The conclusion of marriage contracts in Moroccan Consulates and Embassies

Marriage between Moroccans

• Moroccans residing abroad may -also- conclude their marriage contract in the authentication services at Moroccan embassies and consulates taking into consideration agreements if any.

• The marriage contract requires the following documents :

1. A request of authentication of the marriage contract signed by the applicant ;

2. A copy of birth certificate for both of the engaged couple ;

3. An administrative certificate for both of the engaged couple ;

4. A medical certificate for each of the engaged couple;

5. A marriage authorization is required in the following cases :

• Marriage of persons under the legal age of marriage ;

• Polygamy when the required conditions are fulfilled (taking into Consideration the domestic law of the country of residence) ;

• The marriage of a mentally disabled person.

6. A copy of passport, and the certificate of residence if any.

After the authentication of the marriage contract by the judge, the original marriage contract is given to the wife and an authenticated copy is given to the husband. A summary of the contract shall be transmitted to the Civil Status office at the birthplaces of both spouses. If one or both spouses were not born in Morocco, the marriage contract summary is transmitted to the King’s prosecutor office at the court of first instance in Rabat.


The mixed marriage

Moroccans living abroad may conclude this marriage contract in the Moroccan embassies and consulates in conformity with agreements- if any- and the domestic laws of the host country, it may include the following documents :

1. The same documents required to conclude marriage contract in the Moroccan embassies and consulates as it has been mentioned ;

2. This marriage should take into account that the husband has converted to Islam and that the wife is monotheist if she is not a Muslim woman.

• The consulate should make an enquiry concerning the foreigner, in which he provides a document certifying that there is no impediment to the conclusion of this marriage contract.

• The authorization of the marriage by the judge should be maintained in the file, and a copy of the contract shall be transmitted to the Court Clerk’s office to conclude marriage contract.

• A summary of the contract shall be transmitted to the Civil Status officer, as it has been cited above.

The recognition of marriage

• After the publication of the Family Code, récognize there is no recourse to prove the marriage by witnesses or exchange of confessions between spouses because the contract is the only accepted legal recognition of marriage. If for reasons of force majeure the marriage contract was not officially certified in due time, the recognition of the marriage is issued following a court judgment.

• Petitions for recognition of a marriage are admissible in Moroccan courts within an interim period not to exceed five years from the date of the publication of the Family Code.

• Delegation to a proxy is possible to submit an application for recognition of marriage in Moroccan courts.

• The request includes the full identity of the spouses, and the conditions of marriage available to it, its duration, and number of children if they exist, and dates of their birth, and means to prove the marriage, and if the wife is pregnant or not.

• If the witnesses who know the spouses are residing abroad, and could not come to Morocco to testify in court, their testimony can be declared in front of two Adouls who take note, and will be transmitted to the court.


• The two spouses can accomplish an authenticated document by consulates as an evidence to present in front of the court to prove the marriage.

• If the spouses insisted that the document should be done by two Adouls (public notaries) their testimonies can be, exeptionnally, heard by those Adouls.

• The “marriage by witnesses” and “exchange of declarations between spouses” does not replace the marriage contract, but are submitted to the court for marriage suit.

Divorce of Moroccans Residing Abroad

Divorce in Moroccan courts

• The applicant for divorce must petition the court for authorization to certify divorce by two Adouls.

• The court - before the authorization of divorce- summons the spouses for a reconciliation attempt if they are present in Morocco. And if they are abroad, the court can mandate the nearest Moroccan consulate to the country of their residence to reconcile them.

• The court fixes the vested rights of the wife and children - if they exist-

• The couple can pursue the procedure of divorce by mutual consent for its easy and simple proceedings.

• The two spouses or one of them can apply for the authorization of divorce by mutual consent together with their agreement and a copy of it.

• The two spouses can mention in their divorce request - as well as in any divorce request in exchange for compensation “khol”- their mutual will to overpass the reconciliation attempt phase with reference to the address of the nearest consulate.

• If the court considers a reconciliation attempt necessary, it mandates the consulate to perform it.

Divorce announced in foreign courts

• It is known that the judgments issued by foreign courts are not implemented in Morocco, only after granting it the exequatur, by the Court of First Instance.

• The application is submitted -unless international agreements’ provisions stipulate otherwise- accompanied by the following documents :

1. Certified copy of Judgement ;

2. The original certificate of notice or other document that can replace it ;

3. Certificate of the court clerk’s office attesting that the sentence is exposed to no opposition or appeal or cassation ;

4. Full translation into Arabic -when


necessary- of the documents mentioned, certified by a sworn translator.

• Delegation to a proxy is possible in Moroccan courts to accomplish the mentioned proceedings.

• The interested person can write an application to the public prosecutor’s office

in the submit the request of the exequatur, especially regarding divorce by mutual consent. This application ; along with the attached documents cited above, is addresset to the Directory of Civil Affairs in the Ministry of Justice, or the Consular and Social Affairs Direction in the Ministry of Foreign Affairs and Cooperation.


The importance of establishing the document of marriage contract

The establishment of the document of marriage contract is of considerable importance that lies in the following :

• The regularization of the situation of the spouses;

• The regularization of the situation of children;

• The protection and guarantee of rights: alimony, child custody, filiation, inheritance, etc .

• The settlement of administrative documents relating to marriage including the family record book.

The obligation to establish the document of marriage contract by two adoulsIn order to protect the rights of children and spouses, the family code has made the

establishment of marriage contract compulsory.

The document of marriage contract is the acceptable means to prove marriage.

Testimonial document before adouls or exchange of confessions between spouses cannot replace the document of marriage contract.

The recognition of marriage

If, for compelling reasons, both spouses have not established the document of marriage contract in due time, they can (either both or one of them) initiate an action in recognition of marriage before the family law section at the First Instance Court to regularize their situation.

Granting a second chance for citizens to obtain a judgment of marriage recognition

The family code has given a second chance to citizens who have not yet established the

Recognition of marriage

• The importance of establishing the document of marriage contract

• The obligation to establish the document of marriage contract before twoMarriageOfficers(adouls)

• The recognition of marriage

• Granting a second chance for citizens to obtain a judgment of marriage recognition

• The recognition of marriage proceedings in court


document of marriage contract to regularize their situation, until February 5 2014. The concerned persons, should ,before the expiration of this time, initiate actions in recognition of marriage.

The recognition of marriage proceedings in court

The recognition of marriage proceedings is marked by simplicity, flexibility and speed and so with the aim of ensuring and protecting the rights of citizens and their children.

The concerned party issues the action in recognition of marriage before the family law section at the First Instance Court.

The application must be supported by all means justifying the existence of the conjugal relationship.

The court relies on all the evidence including: the testimony, the expertise, presumptions for the recognition of marriage. The court also considers the existence of children or pregnancy resulting from the marital relationship. It also considers whether the action was issued during the lifetime of the spouses.

In the case of Moroccans residing abroad (MRE), the action in recognition of marriage

is issued either directly before the competent courts, or by submitting an application to the public prosecution, under the supervision of judges attachés to Moroccan embassies and consulates, with the required documents.

Evolution of the number of the mariage recognition judgement for the period (2004 - 2011)

27671

registered judged

Evolution of the number of the mariage recognition judgement for the period (2004 - 2011)

20112010200920082007200620052004 years

536523043922793276711981823470191708114registered

451221447313962233901875116832148176918judged

218.77٪4٪-40٪25٪11٪14٪114٪-

Rate of variation ofthe judged


Reconciliation in family cases

The Significance of reconciliation infamilyconflictcase

In an attempt to preserve family stability and cohesion the Family Code urged the spouses to resolt to reconciliation in cases of revocable divorce, irrevocable divorce, divorce in exchange for compensation (khol’), divorce by mutual consent, divorce before the consumption of marriage, as well as the different types of judiciary divorce such as divorce because of non respect of one of the conditions in the marriage contract, divorce due to non financial maintenance, divorce because of a latent defect, divorce because of abstinence and abandonment, with the exception of divorce because of absence and the authorization procedure for polygamy.

The Code of Civil Procedure provides for conducting such attempt in all family cases, including maintenance, custody and visitation rights of children etc.

Recourse to the attempt of reconciliation The tribunal which proceeded to a reconciliation attempt uses all the mechanisms and formalities tending to facilitate this task: the delegation of two arbitrators, or the council of the family or anyone who it considers qualified to reconcile the spouses.

the could be appealed to the Council of Ulemas, the social workers, the magistrates working in the embassies and consulates abroad as well as to any person properly skilled to perform this role.

Repeated attempts to reconcile

the spouses

Given the beneficial outcome of reconciliation for all the family members (father, mother, children and society), the code convenes the spouses for repeated attempts of reconciliation in case of children. Thus, the court conducts two attempts of reconciliation spaced by a period of not less than thirty days.

• Thesignaficanceofreconciliationinfamily cases

• Recourse to a reconciliation attempt• Repeated attempts to reconcile the

spouses

• Rules governing the reconciliation attempt

• Reconciliation statistics


Rules governing the reconciliation attempt The goal of the attempt is to reach reconciliation between the spouses or an amicable settlement between the two parties.

All the means, methods and ways that could lead to reconciliation can be used.

It is possible - to influence the two parties – to cite Koranic verses and the Hadith in praising reconciliation, as well as the proverbs. mediation techniques and other means can also be used to achieve reconciliation.

Reconciliation statistics

The following statistics were registered in light of the efforts undertaken by the courts regarding the reconciliation between the spouses :

a) The reconciliation in authorization application for divorce certification during the period (2006-2011)

These statistics are:

YearsNumber of familyreconciliation cases

2006 66932007 85122008 75452009 68182010 61212011 9848

b) Reconciliation in the judicial divorce litigation for the year 2011

These statistics are:

types of judicial divorce

certificationofreconciliation

Numbre Pending cases rates

Divorce due to dixord 9679 16,29%

Divorce because of non respect of one of the Conditions stipulated in the marriage contract

56 24,24%

Divorce due to non finan-cial maintenance 22 7,97%

Divorce because of the husband’s absence 89 9,97%

Divorce because of a latent defect 1 4,17%

Divorce because of absti-nence and abandonment 1 16,67%

TOTAL 9848 16,18 %


Divorce procedure

The applicant for divorce must petition for authorization to certify divorce by two public notaries in the judicial district of the matrimonial home, the wife’s home or her residence, or the place where the marriage contract was concluded, pursuant to this arrangement.

The application form must contain clear information about the applicant’s identity, the identity of his wife, their occupations and their addresses and the number of children if any, their age, and school and health situation. The application should be accompanied by the marriage certificate and evidence of his financial situation, such as salary certificate, income tax return and proof of his financial obligations.

The court calls the husband for a reconciliation attempt.

If he personally receives the summons and

refuses to attend court, then, his application shall be considered withdrawn.

The use of fraud by the husband, such as providing an incorrect address of the wife, is punishable by penal sanctions after filing a complaint by the wife.

The spouses must personally attend the hearing for reconciliation. If they have children, the court makes two attempts of reconciliation.

If the reconciliation attempt fails, the husband must deposit the sum of money fixed by the court within a thirty (30) day period to pay all vested rights owed to the wife and children.

If the husband does not do so within the fixed time limit, he is considered to have waived his right to divorce.

If the husband deposits the required sum of money, the court authorizes him to issue divorce by two public notaries in its judicial district.

Divorce

•Divorce procedure •Divorce by ‘tamlik’

•Divorce by mutual consent • Divorceinexchangeforcompensation(Khol’)


After receiving a copy of divorce certificate, the court issues a decision fixing the vested rights of the wife and children, the remuneration of the custody after the legal waiting period (Idda). This decision may be subject to appeal according to ordinary procedures.

Divorce by « Tamlik »

The wife may petition the court to authorize her to divorce by two adouls, if the husband has given her right of divorce.

The request is made in accordance with the procedure outlined above.

The court verifies that the conditions for the assignment of the right of divorce, as agreed upon by the two spouses, are fulfilled. If the reconciliation attempt fails, the court, on petition of the wife, authorizes divorce.

Divorce by mutual consent

The spouses may agree to end amicably their marriage union without condition, or on

conditions that do not contravene the provisions of the Family Code, and which do not in any way affect the interests of children.

Both spouses, or one of them, may file a joint petition for divorce, accompanied by the agreement.

The court attempts to reconcile the spouses. When this proves impossible, the certification and validation of divorce is authorized.

Divorce in exchange for compensation

The spouses may consent on divorce in exchange for compensation (khol’), in accordance with the rules set for divorce by mutual consent.

If the spouses agree on the principle of divorce in exchange for compensation, yet disagree on its reimbursement, the case shall be brought before the court to reconcile them. If the reconciliation attempt fails; the court approves divorce after assessing its compensation.


1- Categories of judiciary divorce

Judiciary divorce because of irreconcilable differences(discord)

Discord is a deep and permanent conflict between the spouses making matrimonial life impossible.

The spouses or one of them may apply for divorce to the court.

The court attempts to reconcile the spouses. In case of failure of reconciliation, the court grants divorce and adjudicates the vested rights of the wife and children.

The court may also award compensation in the same decision to the spouse who has endured injury.

The court decides on the request for divorce on grounds of discord in a period not exceeding

six months from the date of submission of the request.

Judiciary divorce because of breach of a condition in the marriage contract

The wife can file a divorce petition if the husband violates a condition in the marriage contract. And also in the case of any humiliating behavior by the husband, that causes the wife material or moral harm such that the continuance of the conjugal life is rendered unendurable.

The harm suffered is proved by all means of evidence, including the testimony of witnesses.

If the wife does not prove the harm and maintains her request for divorce, she may resort to the divorce procedure on the grounds of discord.

In the case the court grants divorce because of harm, the court may fix, in the same judgment, the amount of compensation due to the harm.

Judiciary divorce1- Categories of judiciary divorce :• Judiciary divorce because of irreconcilabledifferences(discord)

• Judiciary divorce because of breach of a condition in the marriage contract

• Judiciarydivorceduetononfinancialmaintenance

• Judiciary divorce because of absence• Judiciary divorce because of a latent

defect• Judiciary divorce because of

abstinence and abandonment2- Judiciary divorce suits


Judiciarydivorceduetononfinancialmaintenance

The wife may apply for divorce if the husband does not respect his maintenance obligations towards her. The request is considered as follows :

• If the husband has sufficient assets from which to award spousal maintenance, the court may fix the means for paying the wife’s maintenance, and does not grant her petition for divorce.

• In the case the husband proves that he is indigent, the court fixes a deadline for the husband not to exceed thirty days to provide maintenance to his wife, under penalty of divorce, except in special circumstances.

• The court grants divorce for the wife immediately if the husband refuses to provide maintenance or he does not prove his financial incapacity.

Judiciary divorce because of absence

If the husband is absent for more than one year without valid reason, the wife may apply for divorce.

The court confirms the absence, its duration, and the husband’s location by all means.

If the husband’s residence address is known, the court notifies him about the divorce application and grants divorce to the wife if he does not

come back to live with his wife, or if he does not bring her to live with him.

If the absent husband’s address is unknown, the court, with the help of the public prosecutor’s office, takes all appropriate measures to notify him about the wife’s request, including the appointment of a deputy for him. If he does not appear, the court accords the irrevocable divorce.

If the husband has been sentenced to imprisonment or detention for more than three years, the wife may apply for divorce after one year of his detention.

She may apply for divorce two years after his detention although no decision has yet been made.

Judiciary divorce because of a latent defect

Either spouse has the right to apply for divorce because of a latent defect in the other party that may prohibit cohabilitation or contagious diseases that cannot be cured from during the year.

The application for divorce is subject to the following conditions:

• The applicant must not have known about the defect at the time the marriage contract was concluded;


• The applicant must not have behaved in a way that would imply his or her consent to the latent defect once she or he had knowledge of its incurable nature;

• No dowry is paid in the case of divorce on the grounds of a latent defect before the marriage is consummated.

Judiciary divorce because of abstinence and abandonment

When a man takes an oath to cut off relations with his wife, the wife submits a divorce petition to the court, which will set a deadline of four months. And if after this time the husband has not repented his oath, the court issues revocable divorce.

2- Judiciary divorce suits

• The judiciary divorce is requested through a written application or an oral statement presented to the Clerk’s office of the First Instance Court where the marital home or

the wife’s residence is located or the place of the marriage contract conclusion.

• The request must contain the names and addresses of the spouses, the causes of divorce demand, and must be signed by the applicant or his representative.

• The application is accompanied by all proof documents including the marriage certificate or judiciary decision.

Notes :

• Divorce cases are ruled within a period not exceeding six months, excluding exceptional circumstances, and after attempting reconciliation between the spouses, except for divorce case because of absence.

• The court rules on the vested rights of the wife and children, when necessary.

• Divorce judgments are not subject to appeal.


The eligibility conditions for custody

The person petitioning for custody must meet the following conditions :

• The legal maturity for non- parents ;

• The rectitude and honesty ;

• The ability to protect the custodian child’s life and health, to preserve his religious orientation, and to ensure his education and schooling.

• The woman seeking custody will not marry except in certain exceptional cases.

The persons entitled to child custody

After divorce the child custody rights are conferred upon :

• The mother ;

• The father ;

• Then, the maternal grandmother.

In the absence of the above mentioned persons, the court awards custody to the most qualified of the child’s relatives , ensuring that he enjoys all the rights he is entitled to by the foster parent,

otherwise he or she is entrusted to an institution qualified for this purpose.

The period of custody

Custody lasts until the age of legal majority which is 18 years old for both male and female. However, both son and daughter have the right at the age of 15 to choose their foster parent.

In the absence of parents, the child may suggest one of his/her relatives, unless doing so would conflict with his/her interests, and provided that his legal tutor consents. In case of disagreement, the court settles the matter on the basis of the child’s choice.

The remuneration of custody The custodial charges are paid by the person responsible for the child’s maintenance, and it is separate from the breastfeeding salary and child support.No custodial salary is due to the mother during the marriage or during the legal waiting period after a revocable divorce.

Child custody• The eligibility conditions for child custody• The persons entitled to child custody• The duration of child custody• The remuneration of custody

• The withdrawal of custody• The relocation of the custodian child

abroad• Child custody and visitation


Withdrawal of custody The right to custody is lost by the breach of the conditions listed above, as well as in the following cases :

1-The marriage of the custodial mother

a. A mother who remarries may lose custody of her children, with the exception of the following cases :

She will not lose custody :

• If the child is under the age of seven or if the child’s separation from the mother would cause him or her great harm ;

• If the child suffers from an illness or a handicap which renders his or her custody difficult for any person other than the mother;

• If she is the child’s legal representative;

• If her husband is in a degree of kinship relations precluding marriage (mahram), or he is the child’s legal representative.

b. If the custodian is not the mother, she may only retain custody if :

• She is the child’s legal representative ;

• Her husband is in a degree of kinship relations precluding marriage (mahram), or he is the child’s legal representative.

2- The relocation of the custodial parent in Morocco

Child custody is not lost if the custodian or legal tutor moves to another locality within Morocco, unless it is proved to the court that there is a basis for its withdrawal.

The relocation of the custodian child abroad

The custodian can travel with the child outside of Morocco with the legal representative’s prior consent. In case of disagreement, the authorization can be sought from the judge.

Authorization shall not be granted until the judge has ascertained that such travel is temporary and that the child will be returned to Morocco.

Child custody and visitation

The parents may agree on the arrangement of visitation rights. They inform the court that records the contents of the agreement in the decision awarding custody.

If the parties fail to reach an agreement, the court fixes times and places for child visitation to avoid litigation which could arise from this issue, taking into account the particular circumstances of the parties.

Any applicant may seek to review the visitation agreement, if circumstances warrant.


The causes of maintenanceThe causes of maintenance are the marital relationship, family relationship, and commitment. And self-sufficiency is presumed until the contrary is proved.

The contents of maintenanceMaintenance includes food, clothing, medical care, children’s education and all that is judged crucial.

The housing obligation is the responsibility of the person liable for paying maintenance irrespective of the alimony and the custody charges.

Evaluation of maintenance awardsWhen determining the amount of maintenance to be awarded, the court takes the following factors into consideration, referring to an average; the donor’s resources, the situation of the beneficiary, the cost of living and the school

and social situation in which the children live before divorce.

The court may resort to expert assistance if real income would be difficult to determine.

Ways to enforce court - ordered maintenance

• The court determines ways to enforce an order fixing maintenance and housing costs. Maintenance will be withheld from the source of income or salary earned by the person responsible for maintenance. And, if necessary, the court issues orders to guarantee the continuity of maintenance payments.

• The judgment rendered concerning the evaluation of maintenance shall remain in effect until the issuance of another decision that replaces it or until the right of the person benefiting from the maintenance lapses.

Maintenance (Alimony)

• The causes of maintenance• The contents of maintenance• Evaluation of maintenance awards• Ways to enforce court - ordered maintenance• Review of maintenance awards

• The period for which maintenance is due• When does a person lose the right to

maintenance ?• What might happen if one refuses to pay

spousal maintenance ?


Review of maintenance awards No petition for an increase or a decrease in the legally fixed maintenance shall be admissible before one year has elapsed. Nevertheless, the court may give favorable consideration to the request for review, if exceptional circumstances occur.

The period for which maintenance is due• The wife can petition for maintenance

starting from the date the husband has ceased maintenance payments, no matter how long she kept silent about it.

• Child maintenance is paid starting from the date such payment has ceased.

• Maintenance payments for indigent parents start from the date the request was filed.

When does a recipient (beneficiary)lose the right to maintenance ?• The wife does not lose her right to maintenance

unless she has been ordered to return to the conjugal home and has refused.

• Maintenance paid by the father to his children continues until they reach maturity or until those who pursue their education reach the age of twenty-five.

• The father continues to pay maintenance to the child suffering from a handicap and is unable to earn a living.

• Maintenance paid to the daughter shall not cease until she can earn a living on her own or until her maintenance becomes incumbent upon her husband

What might happen if the father refuses to pay maintenance ?

If the parent fails to pay child maintenance without reasonable excuse for a maximum period of one month, he is legally responsible under the provisions governing family abandonment.


Full capacity

A person has full legal capacity when he attains the age of maturity, typically 18 years except for the demented, the prodigal, the insane or the lunatic.

Emancipation

When a minor attains the age of sixteen years old and demonstrates signs of maturity, he can petition the court for emancipation. His legal representative may also submit this request to the court.

Emancipation implies that the emancipated minor acquires full capacity to administer his funds. However, his non financial rights are subject to the legal texts that organize them.

The authorization given to the discerning minor to administer a part of his property

A child, who has attained the age of discernment (12 years old) but has not yet reached the age of majority, may receive from his legal representative a part of his funds to administer it on an experimental and trial basis. Permission is granted directly by the legal tutor or by a decision of the judge in charge of minors on the basis of a request submitted by the minor himself or by the court-appointed guardian or the testamentary guardian.

The procedure to establish guardianship and to remove it

Mentally incompetent persons (demented,

Legal capacity and representation• Full capacity• Emancipation• The authorization given to the discerning

minor to administer a part of his property

• The procedure to establish guardianship and to remove it

• Legal representation

• Judicial supervision of the tutor : the father and the mother

• Judicial supervision of the testamentary and court-appointed guardians

• Division of property owned jointly by the minor and a third party


prodigal, lunatic, insane persons) may be placed under guardianship by the court of first instance – Family Law section - at the request of the public prosecutor’s office or of any interested party, according to the reasons given in the held petition.

The court may decide to appoint a guardian for the mentally incompetent persons from the time their situation is recognized. This guardianship shall be removed from the date of the disappearance of its causes.

Legal representation

Legal representation is made either by legal tutorship, the dative tutorship or testamentary guardianship.

• The legal tutor : the father, the adult mother, in the absence of the father or when the father is deprived of his capacity; and the judge.Le tuteur légal : le père, la mère majeure en cas d’absence du père ou de son incapacité, et le juge.

• The testamentary guardian : is named in a will by the father or mother. The testament is submitted to a judge for verification and approval upon the death of the testamentary guardian. The mother and the father may revoke their testament.

• The court-appointed guardian : is an individual who is appointed by the court (a judge) to be legally responsible for the affairs

of a minor, in the absence of the father, the mother and the testamentary guardian.

• Testamentary and court-appointed guardians must be fully capable, diligent, well - informed and honest.

Judicialsupervisionofthetutor(wali):the father and the mother

Judicial supervision of the father and mother works as follows:

The tutor is not subject to the authorization of the judge in charge of minors’ affairs concerning the administration of the minor’s funds.

If the value of the minor’s funds exceeds 200,000 dirhams, the tutor has to notify the judge in charge of minors’ affairs. The incapacitated individual or his /her mother can also petition the judge to open a file of legal representation.

The judge may lower the aforementioned sum and order the opening of a file of legal representation if he considers it to be in the interests of the incapacitated person.

The tutor must submit an annual report to the judge about how he managed the minor‘s property and how he protects his (the minor’s) person.

At the end of his mission, the tutor must submit a detailed report to the judge about the


situation of the minor‘s property for approval after ensuring the validity of the income and expenses and the debt or credit situation of the minor’s property.

Judicial supervision of the testamentary and court-appointed guardians

The testamentary tutor or the court-appointed guardian must submit to the judge in charge of minors an annual account referring to different income and expenses of the incapacitated person by clarifying his position debtor or creditor.

If the testamentary tutor or the court-appointed guardian refuses to abide by the order of the judge in charge of minors, to give explanations concerning his management of the minor’s property, or refuses to submit annual accounts, or if he refuses to transfer the minor’s property that is still in his possession to an account opened on behalf of the minor in a public institution, the judge may ask the first instance president to order a seizure of the guardian’s property, or an interlocutory decision to place his assets in receivership, or to prescribe a penalty to force him to comply.

If the testamentary tutor or the court-appointed guardian fails to perform his mission or is unable to do so, the court may dismiss or remove him, at the request of the public prosecutor’s office or any interested person, after considering his or her justifications.

The testamentary and court-appointed guardian cannot perform certain acts without the authorization of the judge in charge of minors’ affairs; this is the case in the sale of the minor’s immovable or movable property whose value exceeds 10,000 dirham, or creation of property rights, such as mortgage…

Division of property owned jointly by the minor and a third party

If the legal representative and a third party agree on a shared project, it is submitted to the court for approval after ensuring that the minor is not prejudiced.

If there is no agreement on the shared project, the interested party should suit an action against all partners.


Definition: what is‘kafala’ of theabandoned child ?

• Kafala of the abandoned child is the commitment to take charge of his or her education, protection and financial maintenance. It does not result in the affiliation between the person to whom the kafala is entrusted and the child, knowing that the court declares a child to be abandoned unless he or she belongs to the categories prescribed by law.

Conditions of the kafala of the abandoned child The kafala of abandoned children is entrusted only to the persons and organizations mentioned below;

1st : Muslim spouses who are mature and are both morally and socially capable to

ensure the Kafala of the child and who have sufficient material means to support him or her; they are not infected with diseases that are contagious or that may render them incapable of assuming their responsibility. They must have not been convicted for violating morals or committing a violent act against children.

They should not be in conflict with the child for whom they seek Kafala or to his or her parents by a lawsuit or by a dispute involving worries for the child’s interest.

2nd: The Muslim woman fulfilling the conditions mentioned above.

3rd: the public institutions in charge of childhood protection, organizations and associations recognized as serving the public interest and are able to rear them according to Islam.

Kafala (Muslim adoption) of abandoned children

• Definition:whatis‘kafala’oftheabandoned child?

• Conditions of the kafala of the abandoned child

• The procedures for taking the kafala of the abandoned child

• The effects of caring for the abandoned child

• Permanent residence abroad of the child taken in charge

• The suspension of the kafala


The procedures for taking the kafala of an abandoned child

• The person desiring to assume Kafala (to adopt) of an abandoned child must submit an application to the judge in charge of minor’s affairs whose jurisdiction is in the place of residence of the child.

• The application must be accompanied by documents justfing that all the aformentioned conditions are met, and a copy of the birth certificate of the child to be taken care of.

• The judge in charge of juvenile cases - after an inquiry to make sure that the required conditions are fulfilled - orders the kafala of the child, and designates the person who is granted guardianship.

This order yields a series of effects.

The effects of the act of kafala

kafala is an act that entails the following effects :

• The person in charge of the abandoned child (kafil) is responsible for his or her maintenance and his or her protection, until his or her legal majority (18 years old).

• If the child to be taken care of (makfoul) is female, maintenance continues until her marriage or until she can sustain herself with her needs.

• If the adoptive child (makfoul) is handicapped or unable to meet his or her needs, the maintenance obligation continues.

• The person in charge of the abandoned child benefits from social assistance and allowances allocated to parents for their children.

• The person ensuring kafala (Kafil) is civilly liable for acts of the child in care.

Permanent residence abroad of the child taken in charge

• If the person who is assigned the Kafala wishes to travel and reside abroad with the child taken in charge, he must obtain authorisation from the judge in charge of minors.

• Before granting authorisation to leave the national territory to the host country. The judge ensures the existence of a judicial agreement allowing the system of kafala, with the country in question. The adoptive parent has to submit a certificate issued by the authorities of the country of destination, certifying that the makfoul (the adopted child) will have a stable legal situation in the host country.

• The judge in charge of minors sends a copy of the authorization to the Moroccan consulates where the adoptive parent resides to follow up the child’s conditions and monitor his


completing of his obligations by informing the competent judge of any violation.

The suspension of the kafala

Kafala ceases for one of the following reasons :

• When the adopted child reaches the legal age (18 years old) (except in case of child suffering from disability, unable to support himself and in the case of unmarried daughter).

• The death of the child taken into kafala.

• The death of the adoptive parents, or loss of their capacity.

• The death of the adoptive woman, or loss of her capacity.

• The dissolution of the institution, the organization or the association providing the kafala.

• Cancellation of Kafala by court decision.


Family solidarity fund

1-The categories entitled to take advantageofthebenefitsoftheFund

The beneficiaries from the financial allocations of the Fund, when the execution of the judicial decision setting alimony was delayed or obstructed because of insolvency or absence of the convicted person and when the destitution of the mother is duly confirmed, are:

• The destitute divorced mother;

• The children for whom maintenance is due, after the dissolution of marriage.

2-Conditionsandprocedurestobenefitfrom the Fund

To be the beneficiary of the fund, one must respect the following conditions and procedures:

• To submit an application to benefit from the Fund by the destitute divorced mother or

the custodian or by the right holder among children, if he is major, to the president of the first instance court which pronounced the judicial decision or was charged with execution or to his deputy;

• The president of the court rules on the application within a period of eight days starting from the date of submission of the application and takes a decision that is final and is not subject to appeal. It is executed on the original and does not need notification;

• The beneficiary of the financial allocation must submit an application annexed to the judicial decision to the competent authority that pays the financial allocation as indicated in the decision

3-The documents to be attached to applicationstobenefitfromtheFund

The following documents must be attached to the application to benefit from the Fund that is

1. The categories entitled to take advantageofthebenefitsoftheFund

2. ConditionsandProcedurestobenefitfrom the Fund

3. The documents to be attached to

applicationstobenefitfromtheFund4. Theretrievaloffinancialallocations

from the responsible of maintenance5. Theobligationsofthebeneficiariesof

the fund


presented to the competent President of the First Instance court :

For the divorced destitute mother :

1. A copy of the judicial decision fixing alimony;

2. A minutes edited by the person charged with execution, which proves or delay in execution in whole or in part;

3. Birth certificates of children to prove motherhood;

4. A certificate of indigence;

5. A copy of the act of divorce or a judgment of judiciary divorce;

6. A certificate of life.

For the children entitled to maintenance after the dissolution of the charter of marriage :

1. A copy of the judicial decision setting alimony;

2. The minutes edited by the person charged with execution, which proves failure or delay in execution in whole or in part;

3. Birth certificates of children entitled to maintenance;

4. A life certificate of the children mentioned above;

5. A death certificate of the mother or what proves her destitution :

4-Theretrievaloffinancialallocationsfrom the responsible of maintenance

The competent authority proceeds to the retrieval of the financial allocations, from the responsible of maintenance, in conformity with the requirements relating to the collection of the public debts.

5-Theobligationsofthebeneficiariesof the fund

• The beneficiaries from financial allocations must submit to the president of competent jurisdiction, after expiration of two years from the date of issuance of the decision to benefit, the documents mentioned above.

• Any person, who received from the competent authority financial allocations, knowing it was not due, is held to reimburse them and to pay a fine which amounts to the double - the double of the sum of the mentioned financial allocations, regardless of the penal prosecutions.

Dépôt légal :2012MO2903ISBN :978-9954-9233-2-0

October 2012Conception et réalisation : Nadacom disign : 05 37 68 25 50

Imprimeur : Imprimerie Bidaoui

Date post:	04-Apr-2018
Category:	Documents
Upload:	lynhi
View:	217 times
Download:	4 times

Procedures in Family Justiceadala.justice.gov.ma/production/Guides_Manuels/fr/PlaquetteANG.pdf ·...

Documents