Polygamy… circumventing the law in Morocco
Polygamy is not common in Morocco (Fadel Sana/AFP)
The letter that the president of the Supreme Council of the Judiciary in Morocco, Mohamed Abdel Nabawi, sent in recent days to judicial officials opened the door to an old social debate on the file of polygamy, a controversy that has spread to the point where associations fighting for women’s rights are calling for the abolition of polygamy. simultaneously with the seemingly difficult task of amending the Family Law, which after its promulgation in 2004 was described as a “quiet social revolution”.
At a time when the “Family Code” (law) tightens the screws on those who want polygamy, because it is available in principle only for exceptional cases, the correspondence of the delegated president of the Supreme Council of the Judiciary to the heads of the first-instance and appeal courts and the heads of the family justice departments detonated what was considered a “heavy-caliber bomb”, because it revealed that the council had obtained information according to which some couples authorized for polygamy had repeatedly used the same license to enter into unauthorized marriage contracts without going to court to obtain a new license for polygamy, taking advantage of what was in the license for polygamy polygamy does not include the name of the woman they want to marry.
According to the correspondent, it became clear that “not including the names of the women one wishes to marry in the polygamy permission document opens the door to fraud, and using the permission repeatedly is like a blank check, emptying the legal texts established to protect the family from their content, and makes them lose their effectiveness, because they erode the rights” prescribed to the woman in the process of polygamy, including her right to identify the woman with whom her husband intends to marry, and to enable her to impose conditions for her well-being, or for the well-being of their children.
Although the Family Law allows polygamy under conditions, there are several forms of circumvention of the law that have emerged in the eighteen years since the Law came into force, including obtaining a certificate of celibacy and common-law marriage, and presenting another woman whose husband wishes to marry in court while pregnant at the behest of a Judge allowed polygamy to prove parentage, with recourse to divorce from the first wife, remarriage, and then recourse to the court seeking the return of the first wife who was divorced.
However, from a sociological perspective, it is not possible to take into account the bypassing of some husbands with a social phenomenon, because they remain rare cases, and are almost rare, and because polygamy in Morocco has become rare and does not exceed the second wife. , as a result of legal restrictions and strict procedures prescribed by the Family Law.
A member of the North African Center for Public Policy Studies, Research and Evaluation, Abdel Moneim Al-Kazan, told Al-Araby Al-Jadeed that “some polygamous couples use the same permit many times to enter into unauthorized marriage contracts without resorting to the court to obtain a new permit which can be adjusted.” As fraud and fraud of a criminal nature, Morocco has witnessed a series of transformations at the social level that have contributed to confronting polygamy in a negative way. Al-Kazan explains that “economic realities, the delay in the age of marriage, the legal shift in dealing with underage marriages and the increase in girls’ education are factors that have contributed to the social change in dealing with polygamy, and the awareness of the psychological and social effects of polygamy, whether on husbands or children, and her connection with society.” Rural and tribal are more than cities, as well as the legal development associated with the consecration of Moroccan women’s rights, in suppressing polygamy.
The family law stipulates that the permission for polygamy depends on the conditions reflected in the availability of sufficient means for the husband to fulfill his duty to spend on his wives, the availability of an objective and exceptional justification behind his desire for polygamy and the invitation of the first wife to attend the court hearing whose approval is sought, and in the event that the first woman agrees to the union. Her husband has another wife next to him, then the court retains the case for deliberation, and the decision on acceptance if the request meets all the elements, and the court considers that she is positive for polygamy, that is, it is rejected in the event that the court does not determines that the request meets the necessary elements.
In the event that the first wife refuses to marry her husband with a second wife by her side, and the husband insists on the request, the court will try to reconcile them, but may not succeed in its effort, and the two parties will insist on their positions. Then, if the woman requests a divorce, a judgment is rendered in her favor with fees, which the husband must deposit in the court treasury within seven days, otherwise he is considered to have given up the request for permission to polygamy, and if the woman does not request a divorce, the court automatically applies the discord rule.
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The Family Law also stipulates that permission for polygamy is not given to a man who intends to marry another woman unless the judge informs her that he is the one who wants to marry her to another woman and asks her for her consent to it.
Lily Amelie, head of the “Free Hands” association, told Al-Araby Al-Jadeed that “polygamy as an exception has become the rule due to many couples circumventing the law,” noting that “there is a lack of respect for human rights, because there are frauds.” major actions taken by the husband, such as imposing economic pressure to obtain consent or subjecting the wife to psychological abuse that can lead to chronic illnesses. She adds: “We demand a radical change to the Family Law, in order to keep up with the transformations that Morocco has witnessed, such as the adoption of the 2011 constitution, which affirms the equality of men and women, and the ratification of many international agreements, the most prominent of which is CEDAW. We, as said the king, we require no analysis.” What God forbid, and we adhere to Moroccan and religious privacy, but openness is necessary to ensure effective respect for family, society and human dignity.
For her part, the director of the association “Challenge for Equality and Citizenship” Bushra Abdo requested a complete ban on polygamy, and the deletion of the articles that prescribe it, namely articles 41 to 44 of the Family Law, considering the injustices and injustices that befall wives. pointing out that what is exposed from time to time, regarding the circumvention of the family code for the sake of polygamy, remains limited in light of the determination of many wives to remain silent, that is, to expose them. on pressure. Abdo continues: “Most women do not take advantage of their right to set conditions within the marriage contract by refusing polygamy, either for social and educational reasons that lead them to refuse to anticipate harm, preferring to adhere to the principle of good faith, or from ignorance of the rights guaranteed to them by law”.
In an interview with Al-Araby Al-Jadeed, she explained that “there is a difference in judges’ assessments as a result of the conflict in their understanding of the legal text and its philosophy, and in many judgments it still depends on the financial capacity of the husband without giving importance to the exceptional objective justification of the request for polygamy, and without taking into account the damage caused by polygamy to wives or children. Abdo believes that “the Family Law, which by all standards was seen as a quiet revolution, today, 18 years after its enactment, urgently needs revision in order to eliminate shortcomings, keep pace with the social and economic transformations that Moroccan society has witnessed in recent years, and it is also in line with the obligations of the Kingdom.” And the international agreements it ratified, especially in light of the adoption of the 2011 constitution, which guaranteed the principle of the supremacy of international agreements over national laws.
He explains: “What we are asking for today is a complete ban on polygamy by amending Article 40, deleting Articles 41 to 46 of the Family Law, as well as amending Article 39,” concluding that “multiple marriages concern only 0.34 percent of the total marriages”. allowances.” Marriage, and therefore the argument of the social need to preserve polygamy, is like an assertion, that is, a fallacy, and an insistence on the violation of a woman’s dignity.
