What I call “the extra clauses” were the hardest to get from the adouls who did not take me seriously.
Some of them I was adamant about. And it was my marriage, not theirs. And I had my reasons.
Among other things, because I had the experience of friends who had married in other Muslim countries, which are a little less liberal than Morocco, and who had briefed me well. And because we have seen in other countries such as Tunisia or Egypt that the advances made by the law can always be withdrawn one day or another.
The basis of the basis is the Sharia, in the Maliki school of interpretation. Anything “in addition”, even if it is granted by Moroccan law, can/should be specified in the marriage contract. Moreover, the family code refers to
to the prescriptions of the Maliki Rite for everything that has not been expressly stated in the present code.
Additional clauses: advance consents or refusals
Travelling, working, holding a bank account.
Under Moroccan law, a woman is not allowed to travel abroad with her children without the written permission of the father (even if she has their passports). In Muslim law, in general, stronger restrictions may apply, such as the prohibition to travel without the husband’s consent, even without being accompanied by her children.
This permission can therefore be included in the marriage contract in advance, without time limits. It may be a good idea to renew it at each birth, specifying the identity of the child.
Under Moroccan law, a woman can work and hold a bank account without her husband’s permission. Again, this is a right that can be changed, either in Morocco or by moving to another Muslim country.
Disposing of all her property beyond the Maliki third
The woman has her own property, under the regime of separation of property. The man cannot force her to give them to him, nor use them without her agreement.
However, the
the Maliki rite (the one mentioned at the end of the family code) indicates that the woman cannot give more than a third of her property without her husband’s permission.
And this is important, especially to circumvent the inheritance law which prohibits inheritance between Muslims and non-Muslims, if she has children from a first marriage, or if she has children without converting.
Rejection of polygamy
Polygamy is a right that has been “conceded” in Islam, while seeking to make it as difficult to exercise as possible, by setting conditions of equity, among others.
In the Moroccan Family Code, it is even more restricted, normally limited to “cases of force majeure”, but it remains possible.
It is perfectly possible to include in the marriage contract that the husband undertakes not to “add” another wife. If he nevertheless wishes to do so, he must divorce her first.
Right of option to divorce for the wife
The laws on divorce are quite complex in Morocco. To summarise, there is divorce by mutual consent, conflictual divorce “for fault” (here we say “discord”), and conflictual divorce without particular fault.
The latter is theoretically reserved for men. If the woman wants to divorce without the man’s agreement and without fault, she must theoretically pay him a monetary compensation, this is the divorce by Khol. But it is also possible to write in the contract that the woman also has the right to ask for a divorce. In this case, she does not owe the husband any money.
Applicable law
The applicable law is theoretically the law of the country where the couple first resides together. For example, a French-Moroccan couple who move immediately to San Francisco would find their union governed by American law.
However, for countries that have signed a convention with Morocco – this is the case for France – it is possible to choose in the contract the law that will apply. This is useful in the case of our travelling couple, should they not wish to be subject to American law.
A wali or mahram? Or at least a “representative”?
A wali is to the Muslim convert what a mahram is to the Muslim woman by birth: an adult man, who is responsible for her and guides her.
Moroccan law has emancipated the adult woman, who does not need a mahram/wali once she has reached 18 years of age, but she can, if she wants, call upon him (and choose him herself).
And this is a very good thing.
It’s pretty hard to talk about “divorce contingency”, “dower”, “no second wife” when you’re in a state of permanent love cooing.
Americans, who practice a lot of “pre-nup” (prenuptial agreement), are used to delegating everything to two lawyers, who will manage the whole thing without emotion.
By getting married in Morocco, in a country where you don’t know the law, you can easily make choices that may disadvantage you later on.
If you are a convert, you know that you can/should have a wali. If you are not, there is nothing to stop you from using a friend or a lawyer or a notary (but not an adul, as their training is only in Muslim law. Many of them do not speak French very well and, above all, they have no command of the problems linked to French legislation).
Refusing “customary” marriages
In the past, it was common to get engaged, in front of witnesses, by reciting the Fatiha (the first sura of the Koran) and exchanging gifts. This ‘intention to marry‘ served as a marriage until a contract could be signed. This explains, for example, group marriages such as those practiced in Imilchil during the moussem.
These marriages are now strictly forbidden by the family code. When it was promulgated in 2004, a period of regularisation was provided for to regularise existing marriages, initially for five years, and then renewed until 2019. But this was only a regularisation and, in theory, any new marriages were prohibited. Since 2019, applications for regularisation are blocked by the authorities and do not even reach the court.
In reality, this type of marriage “by Fatiha” continues to take place. It is tempting to circumvent the administrative difficulties, especially for a European convert who wants to become the second wife of a Moroccan. Moroccan law prohibits this, and she will not be able to obtain the capacity to marry and therefore the marriage order issued by the court, a condition for the validity of a marriage with a foreigner. In the event of abandonment or death, the wife “by Fatiha” is not entitled to anything.
In Morocco or overseas, marriage by Fatiha is not halal
Indeed, one of the conditions of validity of polygamous marriage in Islam is the equal treatment of wives. In a marriage by Fatiha, the second wife is legally treated less well than the first, and so are her children. It should therefore not be possible…
I hope that these two articles on the marriage contract have been useful to you, and that you have learned some things from them. What did you put in your contract? Feel free to share your experience in the comments!