The Mudawana (or Moudawana, ), short for mudawwanat al-aḥwāl ash-shakhṣiyyah (, ), is the personal status code, also known as the family code, in Moroccan law. It concerns issues related to the family, including the regulation of marriage, polygamy, divorce, inheritance, and child custody. Originally based on the Maliki school of Sunni Islamic jurisprudence, it was codified after the country gained independence from France in 1956. Its most recent revision, passed by the Moroccan parliament in 2004, was praised by human rights activists for its measures to address women's rights and gender equality within an Islamic legal framework.
Although there were calls for reform to the family law in the 1960s and 1970s, its religious origins made amending it a challenge, and no serious movement for reform emerged until the 1980s. As a result of newly created civil society organizations, including many women's organizations, and increased international attention on women's rights, modest reforms to the Mudawana were enacted in 1993 under King Hassan II. Following this initial change, increased activism resulted in the articulation of a Plan of Action for the Integration of Women in Development, which drew heavily from secular, rights-based frameworks. This sparked fierce debate and opposition within Moroccan political elites and, to a somewhat lesser extent, Moroccan society and culminated in two rallies in Casablanca and Rabat in March 2000 – one in support of reform and one in opposition to it. This occurred shortly after Mohammad VI succeeded his father as King, and within a year of the rallies, he announced the formation of a commission to further reform the Mudawana. In 2003, he announced his intention to replace the code entirely, citing his authority as both spiritual and political leader of the nation, and by January 2004, the Moroccan parliament had ratified the new version.
Major components of the reforms included raising the minimum legal age of marriage to 18 for men and women, establishing joint responsibility for the family among men and women, limiting the terms of polygamy and divorce, and granting women more rights in the negotiation of marriage contracts, among other provisions. Supporters of the reforms point to broad support for them among Moroccan society, especially among women, and cite the new law as a successful example of a progressive reform framed in indigenous, Islamic principles. Critics of the reforms point to the elitist roots of the movements that advocated for the reforms, the influence of Western secular principles, and the many barriers to the law's implementation within Moroccan society.
Background
Origins of Al-Mudawana Malik ibn Anas, the founder of the Maliki school of Sunni Islam, wrote Al-Muwatta, which was an 8th-century collection of hadith, or sayings, of Muhammad, his family, and his companions. These sayings were collected and published by Malik, along with commentary. This formed the foundation of one of the four major Sunni schools of Islamic jurisprudence still in existence today. The Maliki school has been the dominant source of Islamic jurisprudence in Morocco since the 10th century.
Moroccan government Morocco has been described as a "liberalized autocracy." Its constitution grants the majority of executive powers to the monarch, including the power to appoint major ministers and regional governors, and the power to set the priorities of the national agenda; this effectively limits the power of political parties and the elected members of Parliament. Many argue that the electoral system's main function is to serve as a means for the monarchy to create and manipulate a dependent class of political elites. Practically speaking, despite multiparty elections, the monarchy, and not parliament, is the site of strategic political decision-making in Morocco.
The King is not only a political leader, but also holds the title "Amir al-Mu'minin" (Commander of the Faithful), indicating his role as a religious leader as well. The royal family of Morocco, which claims descent from Muhammad, therefore enjoys a sense of political legitimacy rooted in Islam and also has the power to dictate the form that Islam takes within Moroccan society. As a result, this traditional form of religious authority gives the monarch the political legitimacy to arbitrate the agenda and decisions of a modern, multiparty government.
Generally speaking, the monarchy, Islam, and the territorial integrity of the Moroccan nation are considered to be the nation's three inviolable "sacred institutions." Challenges to these three institutions, whether through questioning the king's authority or the legitimacy of Islamic law as the basis for legal codes, are technically imprisonable offenses. These conditions have impacted the process of reforming Moroccan family law significantly.
The Mudawana in Modern Morocco Historically, the creation of the Mudawana in Moroccan law represented a major step in the political and legal unification of Morocco after it gained independence from the French. Its first version was written in 1957-8 by a group of ten male religious scholars (Ulama) working under the auspices of the monarchy; its substance drew heavily on classical Maliki law. As the French had ruled Morocco with a policy of legal pluralism (maintaining, for example, the existence of Berber customary law within Berber communities), the new Mudawana was intended to signify the nation's unity, Islamic identity, and modernity. It did this in part by codifying the system of existing patriarchal, kin-based social structures within the newly independent state. In addition, the Mudawana is the only section of Moroccan law that relies primarily on Islamic sources, rather than Spanish or French civil codes, which gave it a greater sense of immutability and contributed to the difficulty of reforming it later on. A state's family or personal status law has wide-ranging implications for citizens' daily lives, but many gender equality advocates point out its particular significance for women, as it governs the age at which they may be married, issues of divorce and child custody, and their right to work and travel outside the home. Even as various Muslim-majority states have expanded public civil and political rights for women, separate family laws rooted in Shari'a have often remained unchanged; for many Muslims, these family laws remain an untouchable symbol of Muslim identity.
Women and civil society: foundations of reform In 1969, King Hassan II created the Union Nationale des Femmes Marocaines (UNFM), an organization with the stated goal of improving the social and economic status of women in Morocco. The activities of the UNFM focused less on legal reform and more on professional and training programs for women. It was given the legal status of a utilité publique, an important designation for Moroccan civil society organizations, which allows them to raise funds and be exempt from taxes (similar to non-profit status in the United States). Historically, this distinction, which must be conferred by the government, has provided a way for the Moroccan regime to exert a measure of control over civil society organizations, as those whose agendas conflict with that of the government typically find it difficult to obtain utilité publique status. Without this license, an association will have difficulty securing funding and has no right to recourse within the Moroccan justice system.
In the 1980s, a financial crisis led King Hassan II to implement a program of structural adjustment that included some social reforms, leading to increased activity among political and civil society organizations. This included the founding of many new women's associations, many of which began as affiliates of existing political parties. This affiliation lends them a sense of legitimacy as well as connections and support, but some argue that it limits their autonomy as well.
The proliferation of civil society organizations flourished even more in the 1990s, due in part to King Hassan II's active support for them, which reflected a worldwide trend of civil society promotion. Some have argued that the king's support was motivated as much by international pressures and his desire to join the European Union as domestic economic and political problems. It was in this environment that calls for reform to the Mudawana first began to gain traction. All of Morocco's major women's organizations have positioned their work within an Islamic framework in some way, drawing on the work of Islamic scholars to inform their agendas.
Early calls for reform Despite numerous calls for reform throughout the 1960s and 70s, it was not until 1982 that women's legal status was brought to the forefront of public debate in Morocco. Eventually, public debates and discussions led to a broad rewriting of the Mudawana in 2003–4, which many attribute to the increase in activity and organization within Moroccan civil society in the 1990s as well as a changing international environment surrounding women's rights and gender equality. Beginning in the 1990s, women's rights organizations in Morocco gained leverage and influence by incorporating progressive elements from academia, publishing, and government, and using rhetoric that drew from Islamic sources as well as the language of national development and the rights of women and children.
In 1991, this was manifested in concrete political action as l’Union de l’Action Féminine (UAF), a women's group within one of Morocco's Marxist–Leninist political parties and consisting mainly of professional, middle-class women, collected one million signatures on a petition calling for Mudawana reform and presented it to the Prime Minister. This move demonstrated significant political support behind the idea of reform, and framed the issue more as one of politics and human rights than religion (indicated in part by the delivery of the petition to the prime minister, the nominal head of the government, as opposed to the king of Morocco, who is also a spiritual leader). Their primary aims were to change certain elements of the code, including polygamy and the principle that a husband has ultimate authority over his wife. The proposed reforms drew not only on principles derived from the Universal Declaration of Human Rights but also on the Islamic principles of equality, justice, and tolerance. In response, King Hassan II created a commission (which he chaired) composed of 21 religious scholars – only one of them female – and a representative of the Royal Court for the purpose of reforming the Mudawana according to the Islamic tradition of ijtihad. The events were not without controversy, however, generating both a counter-petition as well as a fatwa directed against the women's demands.
Increased activism and 1993 reforms This commission resulted in a number of changes, implemented in 1993, which instituted provisions that (among other things) required a bride's verbal consent to marriage, eliminated a father's right to force his daughter to marry, and mandated the obtainment of a judge's permission in cases of polygamy and a husband's repudiation of his wife. Generally these reforms were considered superficial, but significant as an indicator that the Mudawana was not an unchangeable standard, as it had previously been perceived. Considering the religious origin of the laws, the fact that they had been amended at all was a significant step in demonstrating that they were subject to the process of ijtihad and not completely unchangeable.