Moroccan Divorce Law, Family Court Judges, and Spouses' Claims: Who Pays the Cost when a Marriage is over?

This chapter explores the impact that legal reform has had on Moroccan divorce practice. The Mudawwanat al-Usra (Family Law Compilation) of 2004 included a new provision under which courts should grant a judicial divorce to either spouse on the grounds of marital discord (shiqāq). Since the evidential requirements for establishing the grounds of shiqāq are easily met, the numbers of judicial divorces increased exponentially during 2004-7.

However, although reform has undoubtedly made a court ordered divorce easier to obtain, in requesting it claimants authorise the court to investigate the reasons for the divorce and to attribute blame for the marital difficulties. Article 97 of the Moudawana mandates judges to impose a financial settlement when issuing the divorce, allowing them considerable discretion in how to interpret spouses’ responsibility for the marital breakdown. This has unpredictable financial consequences for divorcing spouses and has informed the conduct of these cases. 

Drawing on fieldwork conducted with legal advice centers (centres d’ecoutes) in 2007 and a collection of court rulings on judicial divorce, I evaluate the arguments that spouses bring to the court during shiqāq hearings and judges’ responses to their claims. Going beyond simply determining in what circumstances courts award divorces, I also assess the financial settlement that judges order in their rulings. I argue that in setting out their reasoning in individual cases judges exhibit a spectrum of responses when ‘thinking through’ the implications of the new legislation.