In Islam, marriage is not a sacrament, but only a contract between two people. It is therefore comparable to secular marriage western countries, even if it is a religious marriage, governed by the prescriptions of the Quran and the Sharia. In Morocco, the 2004 Family Code protects women as much as possible, within the limits of what is allowed, as stated in the preamble
without prohibiting anything that is permitted, nor allowing anything that is prohibited
As in a secular marriage, both spouses are required to intend it to last for life. Temporary marriages are indeed not allowed in Morocco. However, as it is not a sacrament, it is possible to end it, it is simply opting out of a contract.
The marriage contract must mention a number of things, in particular the dower (mahr) which is a condition of validity of the Muslim marriage. It can go beyond that, and this is what is practised in many Moroccan families. It is negotiated by the families, in particular by the mahram (the guardian) of the future wife.
Unfortunately for us foreigners, and especially foreigners, this is a step that we neglect at the time of marriage, and this can be detrimental to us afterwards, especially if things end up going wrong.
The matrimonial regime of Separate Property
In Islam, and therefore in Morocco, the only possible legal regime for a Muslim marriage is the Separate Property regime.
As a reminder, the legal matrimonial regime is the one that applies if no other regime is chosen. It differs from country to country :
- in the US, each State can define a legal regime, many of them are a kind of partnership of acquests, some, like California, prefer a Community Property system;
- in Canada, “partnership of acquests“, with some nitty-gritty differences in some states;
- in Great-Britain, there is no legal regime, which is more or less equivalent to Separate Property, but anything can be defined in prenuptial and “postnuptial” agreements ; “trusts” institute systems of accrual property, “joint-tenancy” is a community property ;
- in Europe, it is generally an accrual property system which applies, under different names:
- in France, it is the “communauté réduite aux acquêts” “partnership of acquests“;
- in Belgium, it is called “communauté légale” or “Legal Community“;
- in Switzerland, the “participation aux acquêts” or the “régime matrimonial ordinaire“, ie “partnership of acquests“.
“Acquests” are the assets (and debts) that both spouses acquire during the marriage, except those they receive by inheritance or gift, which are not shared.
How to deal with property acquired jointly during the marriage?
The most common case is the purchase of a flat or house, the credit being repaid by a single draft, drawn on a bank account which may be the joint account of the household, or an account funded by each of the two spouses or one of the two spouses only.
The division of the property between the two spouses should be recorded in the contract of sale and, more importantly, the marriage contract should be amended (always before an adul) to define the status of the property and the percentage to which each spouse is entitled. This is important in case of divorce, but also for inheritance.
Identify in the contract the assets that each spouse owns before the marriage
This is the best way to do it. It is universal, by the way, because if you read the marriage contracts of your grandparents, great-grandparents, etc. you will see that the dowry, trousseau and assets of each spouse are very detailed.
You can do the exercise twice, once at the consulate when you make your “British” (or Belgian, Swiss, etc.) marriage contract and once for the Moroccan marriage contract. You can also mention in your Moroccan marriage contract the “British” prenup contract or the foreign marriage contract when it’s done before the marriage and specify that it is accepted by both spouses.
Yes, in general, it’s better to make two contracts
This may seem like a “belt and braces” thing to do, but it allows you to settle complicated cases in advance.
Let’s say you get married in Morocco. Your marriage contract does not mention the separation of property, as this is taken for granted in Morocco. But your first country of residence will be France or another country for which partnership of acquests is the legal regime. Local law applies.
The mahr (dower) is not symbolic
The mahr is a sum of money that a husband gives to his wife, the main purpose of which is to ensure her subsistence in the event of a problem, in particular death or divorce. Practices vary greatly, but in general, it is considered to represent several months to two to three years of needs. This is called a dower. Unlike the dowry, which is given to the couple, the dower belongs solely to the wife.
It is not necessary to pay the mahr at the time of marriage. It may be written that it is to be paid later, on a specific date, or simply that it has not been paid. In this case, it will only become due upon the eventual divorce or death of the husband. If the wife predeceases the husband, the mahr is incorporated into his estate, and those who inherit it will receive it upon the death of the husband.
We ‘liberated Westerners’ tend to neglect the dower. After all, we are not commodities to be sold! And then we are independent, sometimes we earn (much) more than our future husband, it seems indecent to us.
The mahr is taken into account in the calculation of the indemnity, in case of divorce
OK, now we look ahead twenty years. You have made a life in Morocco, and you divorce. You are far from your family, with far less interesting work prospects than you could have in your home country. As a divorced woman, you are relatively poorly regarded (this is changing, but it is difficult to be a single woman in Morocco).
The court may give you compensation and will force the father to pay child support as long as they live with you, but if you are the one who filed for divorce, you will get very little money. And then you will regret not having your mahr.
It is because of the dower that it is culturally accepted that the woman does not get much when she divorces. Because she has already accepted / received the compensation.
So, “in Rome do as Romans do“, in Morocco do as Moroccan women do, have a more than symbolic mahr written into the marriage contract, and don’t claim to have received it if you haven’t.
This will also be a good way to “test” the love of your fiancé.
It will remain to define the other clauses… I’ll tell you about them next time!