Maghreb Region: Model Family Law

One Hundred Measures and Provisions for an Egalitarian Codification of the Personal Status Codes

Source: Collectif 95 Maghreb-Egalité. 2005. Guide to Equality in the Family in the Maghreb. Bethesda, MD: Women's Learning Partnership, pp. 169-203.

GENERAL PROVISIONS

Article 1: Personal status and family relationships shall be governed by the provisions of this Code.

Article 2: A family shall be made up of persons united by marriage, blood ties or through a court order.

BOOK ONE: MARRIAGE

CHAPTER 1: Engagement

Article 3: An engagement is a promise of marriage between two intending spouses. An engagement does not constitute marriage and either party may break the engagement.

Article 4: If the breaking of the engagement causes harm to the other party, damages may be awarded.

Article 5: Each of the intending spouses shall be entitled to the return of any gifts offered to the other person unless he or she is the one who broke the engagement.

CHAPTER II: Formation of Marriage

Article 6: The minimum age for marriage shall be set at the full age of 18 years for both women and men, which is the age of legal majority.

Article 7: Marriage shall be formed solely through consent of the two intending spouses. The intending spouses themselves shall be the ones to agree to the marriage.

Article 8: Persons under 18 years of age may enter into marriage only with permission from a judge.

Article 9: Request for permission may be brought before a judge by the mother or father, the legal guardian, the minor or by the public prosecutor's office. The judge shall render a decision after having heard the intending spouses and the guardian and may grant the marriage only if there is serious reason to do so. The order authorizing the marriage is not open to appeal.

Article 10: Impediments to marriage shall fall under one of two categories: permanent or temporary.

  • Permanent impediments are due to consanguinity or affinity.
  • Temporary impediments are due to the existence of a marriage that has not been dissolved or non-expiration of the mandatory waiting period before a woman may remarry following death of her husband or the cessation of cohabitation preceding divorce.

Article 11: A person shall be prohibited from marrying:

  • his or her ascendants
  • his or her descendants
  • the ascendants' sisters and brothers
  • the descendants of his or her sisters and brothers

Article 12: Marriage of any person with the ascendants or descendants of his or her spouse and the spouses of his or her ascendants and descendants shall be prohibited.

Article 13: Polygamy shall be prohibited.

Article 14: A person whose previous union has not been dissolved shall be prohibited from marrying. Any person who contracts a marriage with another person while still involved in a marriage that has not been dissolved shall be liable to a year in prison and a fine.

Article 15: A woman shall be prohibited from marrying before the expiration of the mandatory waiting period following death of her husband or the cessation of cohabitation preceding divorce.

This period shall last three months and shall take effect starting from the dissolution of the marriage by death or by final ruling in a court-ordered divorce.

This period shall end:

  • upon birth of the child, if the woman is pregnant,
  • upon production of a medical certificate stating that the women is not pregnant,
  • upon the remarriage of her ex-husband.

Article 16: A difference in religion shall not be an impediment to marriage. A marriage between a Muslim woman and a non-Muslim man shall be valid.

Article 17: Marriage shall be entered into before a registrar of births, deaths and marriages or any other authority vested with such powers by the law, in the presence of both parties and two witnesses.
Witnesses may be of either sex.

Article 18: Any clause concerning property may be inserted into the marriage contract.

Article 19: Marriages must be recorded with the Office of Vital Statistics.
The actual marriage license or a certificate issued by a registrar of births deaths and marriages shall be considered proof of marriage.

CHAPTER III: Annulment of Marriage

Article 20: Any union entered into in violation of the provisions of Article 7(1) or Articles 10, 11, 12, 13, 14 or 15 of this Code shall be annulled.

Article 21: Any marriage entered into outside the scope of the legal forms set forth in Article 17 shall be annulled.

Article 22: The annulment of a marriage shall result in the following effects:

  • proof of relationship by descent;
  • the obligation for the woman to observe a mandatory waiting period;
  • impediments to marriage resulting from affinity.

CHAPTER IV: Effects of Marriage

Article 23: Husbands and wives owe each other mutual respect, fidelity and assistance. Together, they shall manage the family, raise and protect the children and choose the family home. They must avoid causing each other any kind of harm whatsoever.

Article 24: Each spouse has the right to:

  • practice a profession,
  • administer and dispose of his or her own personal property,
  • keep his or her family name, and
  • enjoy freedom of movement.

Article 25: Spouses shall have shared responsibility for supporting the family based on their financial contribution and/or contribution in the form of household work

BOOK TWO: DIVORCE

Article 26: Divorce may be granted only by a court.

CHAPTER 1: Cases of Divorce

Article 27: Divorce shall be granted:

  • in cases of mutual consent by both spouses,
  • at the request of either spouse on the grounds of harm suffered,
  • upon a no-fault request by either spouse,
  • at the request of either party or by both parties for shared fault.

CHAPTER II: Divorce Proceedings

Article 28: Divorce may be granted only through a court decision following an attempt at reconciliation.

Article 29: The reconciliation process shall be mandatory and shall take place before a Family Affairs judge prior to any hearing on the merits.

If the defendant fails to appear and notice to appear was not personally served to him or her, the Family Affairs judge shall postpone the case for rehearing and shall call upon the assistance of any person whom he or she deems useful in order to personally serve notice to appear on the party in question or to determine his or her true legal address at which the notice can be served.

In cases involving minor children, three reconciliation hearings shall each be held at least thirty days after the preceding hearing.

The judge must attempt to reconcile the spouses. To do so, he or she must meet separately and personally with each spouse and then meet with both spouses together.

The judge may require the services of any person whose assistance he or she deems useful, including the lawyers of each party.

Article 30: The Family Affairs judge may order, even proprio motu, any interlocutory measures necessary concerning separate residences for the spouses, alimony or child support, custody of the children and visitation rights. The parties may agree to expressly renounce any or all of these measures, provided that this renunciation does not cause any harm to the interest of any minor children.

The Family Affairs judge shall determine the amount of alimony and child support allowance to be paid based on the information available to him or her at the time of the reconciliation attempt.

The interlocutory measures shall be set forth in an immediately enforceable order which shall not be open to appeal on fact or on a point of law, but which may be revised by the Family Affairs judge provided he or she has not rendered a decision on the merits.

Article 31: The judge may shorten the proceedings in cases of divorce by mutual consent, provided that the interests of the children are not harmed in any way.

Article 32: If the attempt to reconcile fails, the Family Affairs judge shall refer the matter to the court, which shall rule on the divorce and on any other consequences resulting therefrom in a decision open to appeal.

The provisions of the ruling relating to child custody, child support, spousal support, separate residences for the spouses and visitation rights shall be binding, notwithstanding any appeal on fact or a point of law.

CHAPTER III: Consequences of Divorce

Article 33: Damages for material loss and moral harm suffered by either of the spouses and resulting from the divorce shall be awarded on the basis of Article 26 (2), (3) and (4).

Article 34: Concerning women who cannot support themselves, damages for material losses may be awarded in the form of a monthly, spousal support allowance, including housing, starting from expiration of the mandatory waiting period and based on the standard of living to which she was accustomed during married life.

This allowance may be increased or decreased on a yearly basis to reflect the cost of living index and any fluctuations that may occur. Said allowance shall be paid until the death of the divorced woman, until any changes occur that would affect her social standing through remarriage or until she no longer needs the allowance. In the event the divorced husband dies, this allowance shall be included in the liabilities of the estate and consequently must be paid off in a single payment via an out-of-court settlement with the heirs or through court proceedings, based on the age of the beneficiary at that time. The full amount shall be paid in a single payment, unless the beneficiary prefers to have the allowance paid in the form of capital.

Article 35: Child custody shall be awarded to one of the two parents or to a third party. In making the decision, the judge shall take the interests of the child into consideration.

Article 36: The non-custodial parent shall have visitation rights.

The judge may award housing to the non-custodial parent if the interest of the child so warrants.

The non-custodial parent shall maintain supervisory rights over his or her child, which he or she shall exercise if necessary through the intermediary of the Family Affairs judge.

Article 37: The non-custodial parent shall contribute to supporting the child.

The marital home shall be awarded to the parent with custody of the children if that parent does not have a house.

Article 38: The parent to whom custody is awarded may renounce such custody.

In such cases, the judge shall designate a new guardian, taking the interests of the child into consideration.

The judge may revoke child custody rights from the custodial parent if said parent fails to perform his or her duties.

Article 39: The right to custody may not be challenged if the custodial parent remarries unless a judge rules otherwise in the interest of the child.

BOOK THREE: DESCENT

Article 40: Descent is the relationship that unites a child to his or her mother and father.

CHAPTER 1: Establishment of Descent

Article 41: Descent shall be established by:

  • marriage,
  • recognition,
  • court order.

Section 1: Establishment of Descent through Marriage

Article 42: Descent of a child born in wedlock shall be established with respect to his or her mother and father. Descent shall also be established if the child is born within less than three hundred days after divorce or the death or absence of the father.

Article 43: The husband may legally disown a child if he has factual evidence, corroborated by scientific proof if necessary, to prove that he cannot be the father.

Article 44: The father must initiate disownment proceedings within six months following the birth of the child if he is present. Failing that, he may initiate such proceedings within six months of his return or within six months following the discovery of the false statement if the birth of the child was hidden from him.

Article 45: If the husband dies before he can initiate the proceedings, his ascendants and descendants shall not be legally entitled to contest the legitimacy of the child.

Article 46: The disownment suit, held in the presence of the mother, shall be directed against an ad hoc guardian appointed by the judge for the child.

Article 47: A mother may contest the paternity of the father through any means available, but only for the purposes of establishing legitimacy when she remarries the child's true father after dissolution of her previous marriage.

Article 48: This action against the husband or his heirs will be ruled inadmissible unless it is accompanied by a request for legitimation. Said request must be made by the mother and her new spouse within six months of their marriage and before the child reaches the age of five.

Article 49: The judge shall rule on both requests in a single ruling and may not hear the paternity suit unless the request for legitimation is admissible.

Section 2: Establishing Descent through Legal Recognition

Article 50: The descent of a child may be established through legal recognition by the mother or father only in the following ways:

  • a declaration to the Office of Vital Statistics upon or after the birth of the child,
  • a declaration by the mother and father at the time of their marriage,
  • a separate, officially recorded instrument.

A child may be legally recognized only while living.

Article 51: Recognition may be challenged only through legal proceedings initiated by the person who sought recognition or by the child himself or herself. Such proceedings may also be initiated by the public prosecutor's office if evidence from vital statistics records indicates that the stated descent is implausible.

Section 3: Establishment of Descent by Legal Process

Article 52: Descent from the mother or father may be established through a maternity or paternity suit or through adoption.

Article 53: Only the child may initiate a maternity or paternity suit. If the child is a minor, he or she shall be represented by his or her guardian. Such suits shall be barred starting two years after the child has reached the legal age of majority.

Article 54: A maternity or paternity suit shall be admissible only if there is prima facie or presumptive evidence. Proof may be by any means.

Article 55: Adoption shall be permitted in the interest of the child.

Adoption shall be granted only through legal process.

Article 56: The adoptive parent must be a person of legal age who has full civil capacity. Said person must be of sound mind and body and able to provide for the adopted child.

No one may be adopted by more than one person, except by two spouses.

Adoption by a married couple will be granted only if the application originates from both spouses.

The age difference between the adoptive parent and adopted child must be a minimum of 15 years.

The adopted child must be a minor.

Article 57: Adoption shall be granted through a ruling handed down in the presence of the adoptive parent and, if necessary, the mother and father of the adopted child or a representative of the administrative authority holding public guardianship of the child, or the unofficial guardian.

Article 58: The adoption order shall be final and irrevocable, however, the child may contest said adoption after reaching legal age.

Article 59: Adoption shall confer the same rights and responsibilities as other types of descent. However, if the parents of the adopted child are known, the impediments to marriage referred to in Articles 10, 11 and 12 of this code shall survive.

CHAPTER II: Effects of Descent

Section 1: Names

Article 60: A child whose descent has been established with respect to only one parent shall bear the name of that parent. If descent has been established with respect to both parents, the child shall bear the name of his or her mother and father.

Section 2: Guardianship

Article 60 [sic]: Guardianship consists of protecting and raising the child, administering his or her property and representing him or her in court, and in all other acts of everyday life such as management of his or her affairs and financial transactions, and permission to obtain a passport or to travel.

Article 62: Guardianship shall end:

  • when the child reaches legal age,
  • when the child is emancipated through marriage or court order, starting from the age of sixteen full years.

Article 63: During marriage, the mother and father shall jointly exercise guardianship as a matter of law. The parents shall have rights and responsibilities concerning the custody, supervision and upbringing of the child.

The mother and father shall jointly administer the child's property.

Any disputes shall be brought before a Family Affairs judge.

Article 64: In the case of divorce, the custodial parent shall exercise guardianship. If custody is awarded to a person other than the two parents, the judge shall designate which parent or third party shall exercise guardianship. In any case, the non-custodial parent shall retain the right to supervision, which he or she shall exercise through the intermediary of the Family Affairs judge.

Article 65: If one of the two parents is incapacitated or absent, the other parent shall have guardianship. If one of the two parents dies, the surviving parent shall exercise guardianship. If both parents die, guardianship shall be exercised by a testamentary guardian designated by either of the parents.

Article 66: A parent who is the sole person to have recognized a child shall have guardianship. If the child is legally recognized by both parents, the custodial parent shall exercise guardianship. The non-custodial parent shall retain the right to supervision, which he or she shall exercise through the intermediary of a judge.

Article 67: In all other cases, a guardian shall be appointed by a judge based on the interests of the child.

Article 68: Any disposal of the child's property must first be authorized by a judge.

BOOK FOUR: OBLIGATION TO SUPPORT (MAINTENANCE)

Article 69: Support comprises everything necessary to life, including food, clothing, medical care, schooling and lodging.

Article 70: Spouses must support each other. Ascendants and descendants, regardless of the degree of relationship, are also entitled to receive a support allowance.

Article 71: The amount of the allowance shall be assessed in proportion to the income of the person who owes the allowance and the needs of the person claiming it, taking living conditions into account.

Article 72: An ascendant, regardless of the degree of relationship, must support his or her minor descendants who are incapable of providing for their own needs, regardless of the degree of relationship.

Support shall be provided to the descendants until they have finished school, provided they are not older than twenty-five years. Support shall be provided to disabled descendants who are unable to provide for their own needs, regardless of their age.

Article 73: If there is more than one child, the children shall contribute to supporting their ascendants in proportion to their wealth and not their number.

Article 74: The obligation to support between the spouses shall not expire.

Article 75: If one of the spouses is unable to support the children, the obligation shall fall to the other spouse who is in a position to do so.

Article 76: If spousal or child support is deliberately not paid for over a month, starting from the due date, the payor shall be liable to a prison sentence ranging from three months to one year. Once payment is made, the proceedings or sentence shall be suspended. The amount of spousal or child support shall automatically be paid to the beneficiary out of a guaranteed fund. Said fund shall have the right to seek recourse against the payor in order to recover the amount [it has] paid out.

BOOK FIVE: ESTATES

Article 77: Probate begins upon real or presumed death, the latter being duly established through a court ruling.

Article 78: If two persons die and it is impossible to determine which of the two died first, neither may inherit from the estate, regardless of whether they perished as a result of the same event or not.

Article 79: Any liabilities attached to the estate shall be paid in the following order of priority:

  • any debts incurred through real property included in the estate,
  • funeral and burial costs,
  • any documented debts owed by the deceased,
  • any valid and binding bequests,
  • the inheritance.
  • Article 80: The requirements to inherit are:

    • to be alive or at least to have been conceived at the time probate begins,
    • to not be debarred from inheriting.

    Article 81: A child who has only been conceived shall be entitled to his or her share of the estate if he or she is born alive.

    Article 82: Estates shall be passed on to the surviving spouse, descendants, ascendants and collateral heirs of the deceased.

    Article 83: Any collateral heirs shall be excluded from the estate if the spouse, descendants or ascendants of the deceased are still living.

    Article 84: When inheriting an estate, brothers and sisters who are full siblings, half-siblings on the mother's side or half-siblings on the father's side shall be entitled to an equal share.

    Article 85: In all other cases, the estate shall be passed on to the closest relative.

    Article 86: In the event there are no heirs the estate shall revert to the state.

    Article 87: The male and female descendants of a person who has preceded them in death shall inherit in place of the deceased, with equal shares going to each.

    Article 88: Women and men with the same degree of relationship to the deceased shall be entitled to an equal share of the estate.

    Article 89: A wife or husband shall inherit the same share in the estate of the spouse who preceded them in death.

    Article 90: The surviving spouse shall receive life tenancy of the marital home. Said tenancy shall lapse if the surviving spouse remarries.

    Article 91: A difference in religion shall not constitute debarment from inheriting.

    Article 92: The following persons shall be debarred from inheriting and thus, are excluded from the estate:

    • persons who have murdered the deceased, whether said person is the perpetrator or an accomplice.
    • persons who are guilty of bringing a capital charge against the deceased through false evidence.

    BOOK SIX: WILLS

    Article 93: A will is a document in which a person freely disposes of all or part of his or her property, and which takes effect upon his or her death.

    Article 94: A person may dispose of only a third of his or her patrimony if his or her ascendants, descendants or spouse are still living. If they are not living, all of the patrimony may be disposed of.

    Article 95: Bequests may be made in the form of property not subject to life tenancy or in the form of life tenancy. Life tenancy bequests shall cease at the death of the legatee and the object of the bequest shall return to the estate of the testator.

    Article 96: A will must be in the form of a notarized instrument, and may be revoked in the same form.

    Article 97: Bequests made to a person of a different faith shall be valid.

    Article 98: The legatee shall have two months following the death of the testator to accept the bequest. Silence on the part of the legatee during these two months shall constitute acceptance. Bequests accepted in part shall be executed for this part. The remainder of the bequest shall be null and void.

    Article 99: All forms of habs and waqf shall be prohibited.

    FINAL PROVISION

    Article 100: All provisions contrary to those contained herein are hereby repealed.

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