The Moroccan Family Code - an Analysis of the Application of the Provisions of the Code that Relate in particular to Transnational Family Situations and/or Moroccan Nationals Residing Abroad (hereafter MNAs)
Outline of the project:
The initiative for this research project is linked to the upcoming tenth anniversary of the entry into force of the Moroccan Family Code of 2004 (hereafter MFC). The aim is to conduct a comparative study of the way in which the provisions of the Code – particularly those that concern one’s family situation – are applied in Morocco and in the five main European countries where Moroccan nationals (hereafter MNA) reside today.
The research consists of five components:
The first component involves performing an analysis, as detailed as possible, of the case law since 2004 in the five European countries covered by the project: France, the Netherlands, Italy, Spain and Belgium. The aim is to undertake an in-depth analysis of the case law that can help provide a more concrete idea of the problems raised by the application of the MFC over the first ten years of the Code (2004-2013) and especially of the legal problems that affect the family lives of MNAs.
The analysis will devote special attention to the way in which the provisions of the MFC relating to marriage, divorce and filiation are in fact applied – or rejected. In the event that they are rejected, the study will analyse the reasons adduced for the rejection. The analysis of the case law has been entrusted to national experts in the area: for France, the work is being carried out by Professors Françoise Monéger and Hugues Fulchiron, for the Netherlands by Dr. Leila Jordens-Contran, for Belgium by Dr Jinske Verhellen and Mme Hélène Englert, for Italy by Professor Roberta Aluffi, and for Spain by Professor Anna Quinones.
The second component, which is indispensable for this research, is a study of the Moroccan case law concerning MNAs. Professor Mohamed Loukili (Rabat-Agdal) has made available to the project over a hundred decisions handed down by Moroccan courts and has translated them into French (with the help of Prof. Michèle Zirari). This analysis is supplemented by a study of Moroccan case law published since 2005.
The third component is empirical in nature: it is a field study carried out at three Moroccan consulates located in medium-sized cities at the centre of Europe, spread across three countries (Rotterdam, Lille and Antwerp). This field study focuses on the regularisation practices for certificates and registrations of marriages contracted by MNAs, as well as registrations of births of the children of MNAs. The field study was carried out by Dr. Aboulkasem Ziani and was made possible by the kind collaboration of the consular officials in the aforementioned cities.
A particularly important component of the research is the fourth aspect, which has to do with the daily experience of judges in Morocco of the application of the Code in situations involving MNAs and with the way in which those judges seek solutions to the specific problems that arise. Professor Mohamed Loukili and Dr. Aboulkasem Ziani (Tangiers) met with around 15 Moroccan judges between 15 April and 15 May 2013 and asked them questions about their daily judicial practice in respect of the MFC, and on how they deal with problems or complications (in law) among ‘transnational’ families involving MNAs. The purpose of these interviews was not only to shed light on the concrete application – that is, daily practice, a subject on which very little has been published – of the Code by Moroccan judges, but also to contribute to better awareness and understanding in Europe of Moroccan law and its application by the judicial and administrative authorities in Morocco. In order to gain a clear sense of the family law situation of MNAs, both from the point of view of their situation in Europe and under Moroccan law, knowledge about the position taken by Moroccan judges tasked with interpreting the 2004 Code on a day-to-day basis is absolutely essential. The aim of these interviews was to give a group of such judges the opportunity to clarify their position, by responding to a few preselected questions.
The fifth component of the research project will conclude the data gathering: before proceeding to finalise their analyses, the European researchers envisage a meeting with Moroccan judges and officials, probably to be held in Rabat in autumn 2013 or at the latest in early 2014. The aim of the meeting is to gather responses by the judges and officials to the results of the research conducted in the five European countries mentioned above, in order to be able to take their reactions into consideration before proceeding to the final stage of the project, namely, the publication of a collective volume planned for 2014. The meeting is to take the form of a working meeting. The ensuing volume will be presented at a public conference to be held in 2014 (to mark the 10th anniversary of the Code) at a location, either in Morocco or in Europe, yet to be determined.
The five components of the research are complementary. The aim is to understand the family situation of MNAs and, what is more, over the medium term to contribute to enhancing international harmonisation in their regard. Today, some nine years after the MFC came into force, Europe does not yet have adequate information on the best possible application of the provisions of the Code to Moroccan nationals living within its borders. Several arguments have been advanced in favour of greater visibility and more widespread information about the practices in this area, in order to provide practitioners of family law in Europe with clear and reliable insight into the way in which internal Moroccan law receives foreign judicial decisions and certificates issued abroad in the countries where MNAs reside. Greater familiarity with the provisions of the MFC as it applies to MNAs, including the way in which they have been received in Morocco since 2005, and with foreign judgments and administrative family documents which directly or indirectly concern MNAs, will have the advantage of contributing to a more professional and more correct approach to the provisions in question.