By Paul Scott Prettitore*
Family Code Reforms Set Grounds for Gender Equality
In 2004, the Government of Morocco made major amendments to its Family Code, known as the Moudawana. These reforms addressed two key aspects of gender inequality. The first was that husbands and wives were provided ‘joint responsibility’ in family matters, making both de jure heads of household. This could support women’s increased influence in household decision-making. The second was that women were no longer required to be obedient to their husbands. Obedience had been used as a justification for husbands to, among other things, forbid wives from working, traveling, controlling their own incomes and acquiring economic assets. The reforms also introduced some degree of flexibility in applying traditional views of rights and responsibilities of men and women within the family. For example, married couples can opt now to conclude contracts covering the management of economic assets linked to marriage, allowing for greater equality in control of assets. Men, however, remain legally obligated to provide financial maintenance to the family, which is often cited as justification for head-of-household status.
Shortly after the reforms were introduced public opinion was mostly positive – of those aware of the changes 62% of women viewed them as positive, with 36% of men having positive views and an additional 37% having mixed views. However, social norms continue to at least partially restrict the exercise of these new rights. For example, a 2009 survey found 19% of urban and 15% of rural women reporting domestic violence linked to the exercise of their rights under the Moudawana. Ten years is a relatively short time period to affect major changes in family life, especially if social norms continue to restrict legal rights. But it is important for those entities tasked with implementing reforms to understand progress. The World Bank’s Morocco Country Gender Assessment 2014, currently under preparation, includes an assessment of gender equality in family law as a component of a broader review of women’s status in family and personal life.
Probably the largest obstacle to assessing implementation of the reforms and their impact in closing gender gaps is the lack of comprehensive data. Limited data reveal some trends related to marriage procedures, underage marriage of girls, control of marital assets and access to divorce, which overall suggest a mixed record for the impact of the Moudawanna reforms. These trends include:
A mixed record of impact
Marriage Procedures: On the more positive side, data from a 2009 household survey suggests women are enjoying wider discretion in choosing marriage partners and are less subject to family interference in accepting marriage proposals. The percentage of married women reporting being forced by family to accept their first marriage proposal is only 9%, and family interference in selection of spouses may be decreasing. Less positive is the trend in women signing their own marriage contracts in place of a male guardian. Doing such could increase a woman’s bargaining power both before and during marriage, since the contracts regulate a number of factors such as financial maintenance of the wife and dowries. However, women are not yet doing so in large numbers. The percentage of women signing their own marriage contracts was only around 21% in 2010, a level mostly unchanged since 2007. There is also little data on the extent to which women are using stipulations in their marriage contracts to provide greater protection to their interests during marriage.
Underage marriage: Although the marriage age for women was raised to eighteen – the same as for men – marriage of underage girls has been increasing. And the requirement to obtain judicial consent has not proven an effective means to reduce it. The number of marriages involving parties under the age of eighteen has rose from 38,331 in 2007 to 44,134 in 2010, accounting for over 11% of all marriages. Judicial consent does not appear to be an adequate screen for the legitimacy of requests for such marriages, with 89% of requests approved in 2007 and 92% in 2010. And the burden of underage marriage falls almost exclusively on girls. In 2010, 99% of requests for certification of underage marriage made to courts involved girls, a percentage that has not changed since 2007. Global evidence shows that girls married as minors face certain risks, including increased rates of divorce and higher rates of domestic violence.
Control of Marital Property: The default marital property regime in Morocco remains separate property, under which spouses remain the legal owners of any assets registered to them. In case of divorce, each party takes from the marriage any assets registered under their names. The Moudawana now allows married couples to sign a contract, separate from the marriage contract, establishing the terms under which financial assets acquired during marriage are managed. One option is for married couples to establish a community property regime whereby any assets acquired during the marriage are considered jointly-owned and evenly divided upon divorce. A community property regime is particularly beneficial for women outside of the workforce. Moroccan CSOs have offered assistance to women in arranging favorable provisions in these contracts. But there is no comprehensive data available as to the extent to which married couples are entering such agreements and their impact on women’s control of economic assets.
Access to Divorce: Options for initiating divorce are still not entirely equal for men and women, with men permitted to unilaterally repudiate their wives. The Moudawana now allows women the ability to initiate divorce without having to show some type of fault by their husbands, such as lack of financial support, failure to abide by the marriage contract, abandonment, harm or absence – all of which burdened women with considerably more complicated court procedures than men. Women can now seek divorce by mutual consent, which requires consent of both parties, and irreconcilable differences, which can be initiated by either husband or wife. Data suggests positive trends in access to divorce for women, with the percentage of divorces requiring women to renounce rights to financial assets (khol) dropping by 7% between 2007 and 2010, while divorce based on mutual consent between husband and wife rose more than 15% in the same period. As an added protection for women, all monies owed to a wife and children must be paid before the divorce can be finalized.