"A Comparison between Moroccan and Yemeni Family Law"

Transcription

1 "A Comparison between Moroccan and Yemeni Family Law" Academic Seminar on December 12 th - 16 th, 2009 in Sana'a, Yemen The seminar was coordinated between the Yemeni Women's Union and the University Sidi Mohammed Ben Abdallah Fez of Morocco. The Moroccan delegation was headed by Dr. Fatima Sadiqi, a professor of Linguistics and Gender Studies as well as the director for the Center for Studies and Research on Women. Dr. Sadiqi was accompanied by Dr. Moha Ennaji, Dr. Hakimah Al-Hatri, and four students from the university's Sharia department. The Yemeni delegation was led by Dr. Mohammed Nijad, who is the Vice Dean for the Sharia & Law Department at Sana a University. Dr. Nijad was accompanied by Dr. Yahya Al-Khazan, Dr. Iftikar Al-Mikhlafi, and ten students from the Sharia & Law Department. The seminar was moderated by Dr. Husnia Al-Kadri, the director of the Gender Research and Development Center at Sana a University. Seminar Day 1 - Saturday, December 12 th, st Presentation: "Morrocan Family Law: The Most Important Break-Throughs" (Dr. Moha Ennaji, University Sidi Mohammed Ben Abdallah Fez of Morocco) Dr. Ennaji presented his paper, outlining the various phases of development that Moroccan Family Law has passed through in its history. His paper is summarized as follows: The Moroccan women's movement has made significant efforts to improve the situation of women in Morocco by becoming involved in education, business, development, and the daily life of society in general. It has also been intentional about informing women of their rights. For example, the radical reform that has taken place in family and labor laws recently has been due to the efforts of various women's associations and civil societies. These efforts have contributed to the democratic process in Morocco. Women's participation in everyday life, their involvement in important arenas of society, and their inclusion in the media, are all positive signs that the women's movement and democracy in general has prospered in Morocco. In fact, it would not have been possible for democracy to progress unless the status of women was comprehensively improved and females were included in the developmental and 1

2 democratic processes of the country. The status of Moroccan women, especially since the country's independence, has seen many phases of development which have been related to changes in the infrastructure, economy, population, and society. Specifically, improved education, the improvement of various services, and more work opportunities outside the home, have influenced the status of women. In addition, since women are now allowed in most social, political, and economic sectors and because it is becoming more and more acceptable for women to hold positions in both the public and private sectors including posts in upper management, legislation, and the judicial system, as well as in specialist fields such as medicine the country is moving towards a balanced society at its foundational level. Women in Morocco have made many advancements in sports, aviation, education, and scientific research. Women's abilities have become wellknown, so much so that women have entered the Royal Moroccan Academy and have even become involved in the religious sphere, with such things as the Ramadhanic Hassanic religious lessons and scholarly councils. Regarding the country's democratic progress on the legislative level, Morocco's positive law stresses that every natural citizen, regardless of gender, is under the law from birth or even before, with some legal regulations. In addition, every Moroccan national is considered competent to comply with the law and must do so, unless it is stated that he or she is unable to do so according to the existing law regarding his personal status (as dictated in Article 3 of the Obligations and Contracts Laws). Finally, the constitution states that all Moroccan citizens are considered equal. The technicians' movement which has been developing since the beginning of Morocco's independence, as well as current changes, has allowed citizens in general, and women in particular, to exercise a number of important rights that are stipulated in the constitution and in current legal and regulatory texts. In addition to this, the women's movement has gained rights in education and in the work place. Women also now have the right to vote and to form unions and other associations. Concerning the work place, women have gained more rights concerning employment and work contracts. Finally, women have obtained more legal rights, which is considered to be among the most important accomplishments the women's movement has achieved. If it is accepted that the term 'positive law' refers to the collection of legal standards that are applied in a specific country at a specific time and that these standards are established by the general authority or acknowledged by it, that they assume a concrete understanding of the term 'legal institution,' and that these standards are based on a system linked to morals then this is what we find in Moroccan positive law. Moroccan positive law uses several 2

3 components from the Islamic Arab State's legal system, components such as the Personal Status Law, which is based on religious sources. In addition, it integrates components from the West, which it accumulated during Morocco's period of protection. These components adopted from the Western legal system include obligations and contracts law, commercial law, real estate law, water laws, modern savings laws, the civil status system, and the civil code system. After independence, Moroccan positive law was affected by the technicians' movement and was subject to continuous reforms and revisions in the areas covered by various bilateral or multilateral agreements, including international treaties that dealt with human rights issues. Therefore, the positive law that is applied by Moroccan courts takes into consideration the Ratified International Agreements, constitutional standards, legislative and regulatory standards which incorporate the integration of Islamic jurisprudence and local traditions, particularly in areas concerning the conditions of individuals, families, and non-protected real estate. Moroccan positive law also incorporates many aspects inspired by Western legislature, such as contract, commercial and criminal law, as well as legislation concerning protected real estate and taxation. If these texts do not distinguish between men and women in regards to gender issues, then their existence alongside the standards regulating the conditions of individuals and families will create a number of problems when they are applied within the larger framework of these laws. In particular, when they are applied to areas concerning legal capacities, which includes the right to litigate, exercise economic rights, and protect a person's fundamental rights. As a result, in an effort to obtain these legal capacities, legislators supported by the work of civil societies have approved many economic, administrative, social, and cultural reforms in recent years. In the field of regulations concerning the status of individuals or families, the legislation is of a special nature and requires sensitivity as it can positively or negatively affect the roles of individuals within the family and within society. Therefore, flexibility and careful deliberation were used when drafting these laws so that the amendments that were to be made took into consideration the pre-existing development of family and societal relationships, as well as the possible responses of society and the potential affects the laws would have on family structure. In order to understand the pressure and difficulty involved in developing these laws, interpreting, and enforcing them within the positive law and all its facets, the following principles which these laws took into account are listed: 1) The precedence of the constitutional standards concerning the concept of the Moroccan family; 2) Maintaining respect for the underlying principles of the personal laws which delineate the various legal categories (i.e. families, individuals) found in Moroccan law in 3

4 accordance with Chapter 3 of the Moroccan Nationality Law; 3) Since the Moroccan family is protected by Moroccan law and benefits from the personal laws, the 'juristic personality of the family' and the powers the family is given as a legal unit must be clearly defined; 4) The importance of the legal framework which specifically delineates the status of the family; 5) To consider current input from the eminent international treaties concerning the framework of Moroccan law. It is with these things in mind that His Excellency King Mohamed VI initiated and supported recent reforms to the Personal Status Law. Mohamed VI began by forming a committee of scholars and experts which spent more than two years studying the possible reforms that could be made to the Personal Status Law of the Moroccan Muslims. The results were submitted to King Mohamed VI, who then announced his approval for the proposed reforms in his inaugural speech for the final session of parliament held on October 10th, The two chambers of parliament then ratified the law and sent it back to the king for his final approval. King Mohamed VI ratified the law and designated Law Number on February 3rd, The law was published in the 5,186 th volume of the kingdom's official journal on February 5th, 2004, which also marks the date on which the law came into effect. It should be noted in this section that certain laws regarding the family system which were approved between 1957 and 1958, which were amended in September of 1993, were more significant in some ways than the issuance of the previously mentioned Family Law which was instituted on February 5th, In particular, these laws dealt with equality between husbands and wives, especially in regards to choosing a spouse and improving marriage relationships. The amendment in 1993 stipulated that a woman must consent to and agree to marry the husband, and express her agreement. Furthermore it is worth mentioning that even in the law's first draft in 1958, forced marriages were eliminated (Articles 2, 4, and 5), however paragraph 4 of Article 12 still allowed a judge to rule if an obligatory marriage was appropriate in circumstances where there was feared to be bad behavior from the underage girl. Nevertheless, Article 5 of the 1993 amendment canceled all forced marriages, although the exercise of this right still required the intervention of a judge in order to protect the structure and integrity of the marriage agreement. In addition, Articles 41, 42, and 43 of this law stipulated that other administrative formalities be available prior to, during, and after the writing of the marriage contract in order to protect the agreement expressed by the bride-to-be. Furthermore, the amendment of 1993 and recent reforms have sought to strengthen the rights of the girl who is to be married (revised Article 4

5 41). Also, Article 5 of the amended draft specifies that in order for the marriage contract to be considered valid, the wife must sign a copy of the contract summary written by two non-biased individuals. To solidify the protection of the wife's agreement, the new amendment stipulates that a clear agreement must be expressed by the girl who is going to marry, thus indicating that a woman of legal age has full rights and legal power. The purpose of the law, since it was first drafted in 1958, is to limit the practice of polygamy only if it is feared not to be fair. This principle has been maintained in the 1993 amendment, as well as in a recent amendment, which focused on asserting the necessary role of the judge and making sure that a husband that wants to marry another wife meets all the conditions and regulations, including the requirement that he communicates his intentions to his existing wife and informs his new fiancée that he is already married. Concerning separation or an annulment of the marriage contract, the new amendment confirms what was in the 1993 amendment, that the husband must attempt to reconcile with his wife before going through with a divorce, as is stipulated in the amended Article 179 of the Civil Guidelines Law. The amendment of 1993 left a dualistic situation for a married woman, both within the family and within general life. The question remained as to what her role was as a woman in the family and as an active member of society, and whether or not she was able or obligated to participate without hindrance in communal projects. For example, obedience to the husband is maintained as a priority, this obedience is a heavy burden which overshadows everything else and almost overwhelms the women's rights that are stipulated in the constitution. As a result, their full rights have vanished, including their right to travel inside and outside the country, their right to work, and their right to keep custody of their children if the father dies or becomes mentally ill. In addition, there still remains ambiguity concerning the guidelines of a marriage contract (such as the role of the legal guardian, the minimum age for marriage, and other conditions within the contract). The law is also unclear in instances where the husband is unable to fully support his wife and children or in difficult cases where the husband fails to disburse money that he is obligated to give his wife and children. Situations such as these also result in complications concerning the woman's role as she takes on the financial responsibilities of the family as well as the responsibility of raising the children. Her status and role in the workplace can be contradictory and unclear, and in a reasonable case where she is suffering from the behavior of her husband, it can still be difficult for her to get a divorce in an 5

6 appropriate amount of time. All these issues raise the question of whether or not the laws concerning families are adequate to address these and other problems such as domestic violence against the wife and children, the dissolution of families, the economic and social weakness of families, and cases of neglect. Regarding cases of neglect, there are numerous instances where fathers abandon their educational and economic responsibilities towards their children, either by being absent from the family or even emigrating from the country, thus risking the loss of their children, who can often end up homeless and on the streets. Therefore the royal initiative to reform the Family Law was an important and essential step to seriously dealing with these negative issues and limiting their potential consequences. And if the elapse of 5 years since applying a law is an incentive to study on how to convey its contents to the concerned families and understand its content and the dealing of the judicial and the public opinion with it positively or negatively, this period of time even if it is not enough to have a comprehensive idea about the issue. It necessitates to start with field studies about the news issue and to what extent it is enough, and to use the statistics either on the level of the actual dealing from the families side or at the level of the judicial procedures and the execution of the sentences and their effectiveness and to be sure of the usefulness of the new legal basis either they are principal or procedural. Finally, after a long struggle, the approval of the Family Law was completed in order to organize and regulate the relationships within the family. The law traveled a distinct path in which the political will had to navigate through the interests of every component in society. Those who have followed and analyzed the Moroccan issue consider this law to be the deepest reform to date that has occurred in Moroccan society. It was able to adapt a humanitarian philosophy that encompassed justice, fairness, and respect for all people, whether man, woman, or child, and it was able to integrate unique Moroccan characteristics with universal values which support basic rights and equality. The law has helped to create stability and cohesion within the family, it has affirmed the values of love and social integration, and it has allowed peace and safety to exist for family members, preventing against injustice or abuse which could damage relationships and weaken households to the point where they could fall apart. The family with a woman as its backbone is a strategic avenue in achieving a holistic development as well as introducing significant reforms into society. Therefore, the Family Law was one of the most important achievements in Morocco, since it accomplished foundational reform on the social, cultural, and legislative levels of society, striving to be more modern and democratic a society that is developing and attempting to involve women in the battle of development and in public affairs. These goals could only be possible if a legal framework was 6

7 established that could protect women's places in society and facilitate their participation in every aspect of general life as a full citizen. In order to construct a modern democratic society that is defined by human rights, democracy needs to be practiced within the home and among all the members of the family. On a daily basis the family unit should utilize dialogue and discussion to arrive at the wisest decisions possible that serve the interests of each member, rejecting all aspects of oppressive, unilateral and autocratic decision-making. Democracy in a society begins with democracy within the family. Therefore, one of the most important pillars for reform is a relationship of equality, balance, and fairness between the husband and wife, whether it is at the beginning, in the writing of the marriage contract, in the middle, during the marriage, or at the end, if the marriage contract is broken. Since a number of issues have been changed, family relations have transformed from a vertical hierarchy, which was built on dependence and submission, to a more horizontal dynamic that is dependent on equality, dialogue, shared responsibility, and partnership. We should be proud of the new Family Law and its contents because it has become an example for the Arab and Islamic world. Through Morocco's experiences, we are able to present a unique model, which exemplifies many of our cultural values, to the world. Concerning the application of the law, it is not enough to just have good legislation; we also need to apply it completely and faithfully. This is the biggest fight ahead of us now. The five years that have elapsed since the law was put into affect have been enough to evaluate the results objectively and to analyze its social and cultural effects. It has also provided enough opportunity to evaluate how the law has been applied at various levels within the court system, as well as how the Supreme Council for Jurisdiction has approved interpretations and applications of the law, and endeavored to protect the spirit of the law, which is to maintain justice. A law with this depth and volume of changes, which relates to intimate relationships, has to be treated with special sensitivity. Legislators are obligated to bring a balance of rights and duties, consequently removing some powers and privileges that were previously only enjoyed by one party. As a result, it has faced some resistance from those who wish to hold on to their special powers and privileges. In order to enable the justice system to effectively enforce this law, two things need to take place: First, there needs to be suitable space allotted throughout the Kingdom for these types of family cases, either by constructing independent buildings in the major cities of Morocco, or by adding special wings to existing primary courts. These new sections should be devoted to dealing with all the issues related to the Family Law and they should be staffed with specialized judges and other qualified employees who are experienced in these areas. Second, judges should be selected from among the most qualified available and trained to interpret the 7

8 texts appropriately in actual situations, since the judges play the main role in applying it. A jurist has said, I would prefer to have a good judge and a bad text rather than have a good text and a bad judge. Why? Because even if the text is bad and the judge is good, through his authority he can interpret the text and using his individual judgment apply it correctly to the situation so that justice is still done. A good example of a successful court specializing in Family Law exists at the Casablanca Courthouse. The court has a special family cases section with its own separate building, about 56 judges (male and female), clerks, more than 100 employees, 200 jurists, 40 male and female transcribers, and a number of other assistants. The court has been reorganized in order to take into consideration its specialty and in order to streamline its procedures and most effectively assist the litigants. Despite the difficulties faced at the beginning when the new section was created out of five separate departments, it is now operating normally and the results seem very positive. There is a good level of unification between the judges and their efforts in applying the texts accurately. Judgments are made fairly, for example, genetic testing is used to prove or disprove relations, divorces are approved in cases of discord upon the request of the husband or the wife and their possessions are distributed between them, and the new procedures concerning divorces and reconciliations are applied in the counsel room. Certain things have necessitated the opening of an urgent judicial court, although normally it is the responsibility of the president of the court, the head of the section has replaced the president in judging urgent family cases. This has helped the system and provided quick solutions for family problems that require immediate attention. This urgent judicial court did not exist before the law was put into effect, but even after the law was approved, family cases were not always transferred to the special family court. However, judges who practiced Family Law found that it was important to have an urgent judicial section as part of the larger family court and through much effort, they were able to establish one. The family court in Casablanca has also faced some difficulties because it is in need of more personnel and finances. Ideally, it would have double the finances and employees that it currently has in order to effectively meet its demands. In addition, some public and private institutions, including various banks and other financial institutions, do not respect or submit to the decisions of the court. For example, a verdict which confirms a marriage or divorce is given to these institutions but they reject it, saying that they are accustomed to being able to preview the verdict beforehand in a judicial document. This unfortunately goes back to a lack of coordination and communication between the departments, which hinders the effective application of the law. 8

9 Therefore, there should be sufficient comprehensive training and education concerning the contents of this law, since some husbands have utilized the law without fully understanding it. One man sold all of his property before his marriage, thinking that he did not want to share it with his wife, but this was a big mistake because the husband's property is calculated after the marriage, not before. This is an instance where the media was not utilized to inform the general populace about the contents of this law. Audio and video could have been used, or even TV or films, in order to increase awareness of the law in a responsible and deliberate manner. Finally, everyone is responsible for applying this law, including civil societies, organizations, the media, social and educational institutions, and individuals. Thus, the judicial system is not the only entity responsible for correcting problems within the society. Dr. Moha Ennaji concluded his speech by stressing the importance of integrating social assistance which is required by law to facilitate the application of the law. 2 nd Presentation: "The Moroccan Family Law from the Sharia Perspective" (Dr. Hakimah Al-Hatri, University Sidi Mohammed Ben Abdallah Fez of Morocco) Dr. Hakimah Al-Hatri introduced her topic by explaining the history of the development of the Moroccan Family Law and the Moroccan legislation after independence. She described the changes which happened in the society which required legislators to work hard to adapt the law in order to preserve social peace and eliminate the oppression and violence against half of the society (i.e. women) and to protect the rights of children so that they can grow up in a society categorized by love and equality. Dr. Al-Hatri's paper is summarized as follows: The texts and articles of the Family Law which came into effect after independence in 1956 are derived from the regulations of Islamic Sharia. At that time, Moroccan legislators endeavored to take all the laws that were applicable to people's behavior from the Islamic Sharia, not just the Family Law. This is a selection from Royal Decree No issued in the official journal #2341 on September 6th, 1957, stating the following, "Under our auspices, a specialized committee should prepare a law for the regulations of the Islamic jurisprudence. This should be a unified law that is enforced all over our Moroccan kingdom after we have issued a decree concerning it." It was apparent that this decree ordered the collection of regulations from the Islamic law for all its branches, and not only for the writing of the Family Law. This marked the beginning of the committee's work to put together regulations of a special law within the larger Family Law legislation entitled "Personal Status Law". This was the only law which was issued into existence. 9

10 Therefore, the Moroccan Family Law is considered to be 100% Islamic with no reservations. Whether it is the Personal Status Law of 1957, those whose Articles were amended in 1993, or the current Family Law which was subjectively reformulated in most of its articles. Dr. Al- Hatri confirmed that she bears responsibility for what she said. She added that some people might say that the Moroccan law is too open towards the international tendency concerning the family regulations and law. It is in fact true that the openness of this law remains within the framework of the spirit of Islam and does not contradict it. The Moroccan legislator never adopted regulations contradicting the Islamic Sharia and the last article in the law clearly stated that the law is dependent on the Islamic Sharia according to the detailed proofs which the legists discovered. Their efforts began by implementing the ideology of Imam Malik. Secondly, they made jurisprudence efforts in harmony with the spirit of Islam, a move that was explicitly mentioned in Article 400 of the law, stating the following: "All which is not supported with evidence in this law, shall be referred to the ideology of Imam Al-Maliki which takes into consideration achieving the values of Islam in justice, equality and good relationship." It is true that the amended Family Law in its drafting and articles is based on the ideology of Imam Malik, as this ideology was preferred by the Moroccans due to its moderate nature and its relation to the traditions and customs of the Moroccan people. The ideology is one of common sense and therefore more practical as opposed to theoretical in its nature. Most ordinary Moroccans prefer to avoid complicated theories and radical interpretations. For these reasons, the Moroccans prefer this ideology and welcome what complies to the spirit of Islam and its values rather than the other Sunni or Shiah ideologies. After the people reached ideological, cultural and social maturity, they agreed, in addition to the Imam Malik ideology, to refer to many non-maliki jurisprudence texts such as that of Hanafi, Shafae, Shiah and Dhaheri. The following is a selection of a speech which was delivered by the late Al-Hassan II in 1992 when the people of Morocco approved the Constitution. Al-Hassan II pledged to the people, All should be sure that I will be just to the women of Morocco. Of course, I will apply the kind Islamic Sharia and I will approve the rights of women and make certain that it is rightly applied. Your aim, my aim, and the aim of others is to establish the Moroccan family in the right way of the book of God, in this society which God desires to be lively and persevering." None of the aforementioned items should hinder the Moroccan legislator from adopting certain regulations stated in the international agreements and treaties which comply to the spirit of Islam. It could even be said that the acknowledgment of human rights, concerning men, women, and children, is merely tacit recognition of what was brought by Islamic Sharia since its arrival nearly 15 centuries ago. 10

11 H.M. King Mohamed VI confirms this notion by saying: "Being the Emir of the believers, through this pilot work we have contributed to what the Islamic nation should carry out to correct the kind picture of Islam from what distorted it and from extremism, thus confirming the ability of the Islamic brain to be in harmony with the recency." After Dr. Al-Hatri confirmed that the Moroccan Family Law is based on the Islamic authority while adopting some of the regulations from international agreements and treaties which do not contradict the spirit of Islam, she began mentioning some of the models which are under public criticism. Let us observe the following examples. The amending of the Moroccan Family Law paralleled the ideological and social maturation of the Moroccan society in the final stage, which prompted the legislator, while amending some chapters of the law, to take into consideration this point. Thus, he made the state authority in marriage of the mature woman optional. The mature woman, when writing her marriage contract, has the right to give authority to a close or distant guardian or another person of her choice so that that person may oversee her marriage contract. She may also decide to finalize the contract by herself without the aid of a sponsor, owing to the fact that the Moroccan women were able to achieve success in different fields, most notably, the handling of their financial, economic, social, scientific, cultural and political issues in an honorable fashion. No one can deny that these women have competed with the men in many fields and furthermore, this reality almost certainly influenced the Moroccan legislator s opinions about the potential of Moroccan women. The Moroccan women s superb display in these various arenas proved to many that they are more than capable of managing their personal lives. They thought, if they act according to the Sharia Law and respect the Moroccan traditions and cultures derived from the spirit of the Islamic Sharia, then they prove to be worthy. However, if they exceed these limits and choose unsuitable marriage partners while getting married against their parents will, then they do not deserve to take on this responsibility. Consequently, they would be removed from their parents and deprived from living with them. Such conflicts would cause the legislator to alter the law, withdrawing from women this right. This scenario highlights the law s changeable and amendable nature. Dr. Al-Hatri pointed out the fact that according to strict Moroccan traditions, parents do not accept a person who seeks to get engaged to their daughter unless he is accompanied by his relatives. The question then arises, how can they welcome the daughter who enters the family house without being accompanied by her parents and agree to her marriage and bless it? She added that the Moroccan legislator had a good will when he granted the Moroccan women this right. The legislator s decision was consistent with the well-known Hanafi juristic sect which is spread widely throughout the Islamic world. The Hanafi sect similarly permits women all the same rights in the handling of marriage. If the Maliki sect decides that the 11

12 sponsor is a necessary condition of the marriage contract, that would mean that all marriages without sponsorship are invalid. The Hanafi sect considers the guardian a condition for correctness and this means that if the woman gets married to a person who is suitable for her and her parents, then the contract is finalized. However, if she decides to marry an unsuitable or adulteress person, then the guardians have the right to request a cancellation of the contract. In this way, both sects agree that guardianship is a necessary condition to finalize a marriage. Dr. Al-Hatri clarified the issue of young Moroccan girls finalizing marriage contracts by themselves (without a guardian), since this was indeed the case of many orphan girls, previously married women, women older than their spouses, and those who are past typical marriage age. But for those women who do not fall in these categories, women who respect Islamic morals and are proud of the Moroccan traditions, thus living under the leadership of their fathers, which Muslims are distinguished by, then it seems the percentage of error is unlikely to be high. Despite all this, Dr. Al-Hatri urged the Moroccan legislator to reconsider this issue and reevaluate the authority system in marriage. She referred to the second point which she clarified as the equality of responsibility between the husband and wife. The principle of equality and joint responsibility amongst the family and the marriage partners implies that each party should share the total responsibility of the marriage as well as their individual responsibilities. It also means that the wife shall bear with her husband the responsibility of running the family affairs and adhering to the principle of equality between men and women. It does not, however, mean that the wife shall participate with her husband in taking care of the family financially, but rather it refers to the emotional and physical needs. As they care for the family and work side by side to bring stability while directing it in accordance with Islamic teachings, children are raised in the best possible way. Truly responsible husbands and wives take all the possible precautionary measures to protect their family s safety. Article 51 of the law has attempted to provide this equality through marital rights and duties. These are jointly established and exchangeable between them after amending the old division. The old division divided the rights and duties into rights for the wife by the husband and likewise, the rights of the husband by the wife, as well as others exchangeable between them. Thus the rights emerged as follows, "The exchangeable rights and duties between the husband and wife : 1- The rightful housing as required by the matrimonial relation; fairness and equality if there is a polygamous marriage; protection of each other and loyalty with the necessity of purity, faithfulness, and family planning; 12

13 2- To live together in fairness, mutual respect, love, mercy and to preserve the interests of the family; 3- The wife shall bear with the husband the responsibility of the caretaking of the house and children s affairs; 4- To consult each other about decisions concerning the caretaking of the family, children and family planning matters; 5- To properly treat each other s parents-in-law, respecting them, visiting them and allowing them to visit on a reasonable basis; 6- The right of inheritance for the husband or wife, similarly, the understanding of equality in view of the Moroccan legislator, akin to the equality decided by the Islamic Sharia which exists between man and woman. This confirms what King H.M. said to certain Western parties who called for absolute equality between males and females in all fields: "You have in France and in a number of other Western countries a discussion also about equality... I do not think that the absolute equality between men and women will be achieved one day, but in fact, what does equality mean? It means to preserve both the male and female identities by keeping the honor and dignity of the woman and the man together." Dr. Al-Hatri referred to the amendment which was made in the Moroccan Family Law as being the most important event, which used the principle of equality to achieve the best interests of the family - woman, man and children. To achieve this goal, H.M. did not consider the Family Law a law for the woman alone, but a law that applies to the whole family - father, mother and children. H.M. confirmed this by stating: "Since I am king of all Moroccans, we do not legislate for certain groups, rather we embody the general will of the nation, which we consider our biggest family... As we thank God who made us succeed in achieving justice for women and protection for the rights of children and maintain the dignity of men, we reconfirm that it is a gain for all Moroccans." Dr. Al-Hatri also said that there are many points which still need analyzing and clarification, which is required by the Islamic Sharia. The issues of recognition rates for babies who are born in the time of engagement, the issues of mutually-decided divorce and divorce for discord all distinguish the Moroccan Family Law from the rest of the Family Laws in the Arab and Islamic states. She concluded her speech by saying that she plans on carrying out a legislative comparison between both laws and an academic comparison based on analysis and documentation while referring the texts to their origin. 13

14 3 rd Presentation: "The Yemeni Family Law and its Historic Development" (Dr. Iftikar Al-Mikhlafi, Sana a University) In the second segment of the program, participants listened to a speech by Dr. Iftikar Al- Mikhlafi, who specializes in the foundations of Islamic jurisprudence, entitled, "The Yemeni Personal Status". Dr. Al-Mikhlafi spoke about the Yemeni Personal Status Law which regulates the relations within the Yemeni family unit. In Dr. Al-Mikhlafi s discussion, three issues were addressed: 1- Family Law No. 1 (1974); 2- Family Law No. 3 (1987); 3- Present-day Yemeni Personal Status Law. Family Law No. 1 was the first law to organize the Yemeni family relations after the independence of the Peoples Republic of Yemen and has reflected the political ideology of the Yemeni Socialist Party which holds to the principle of monogamous marriage. Despite this restriction, instances of polygamy are permitted by the court in situations where the wife is sterile or sick with a chronic or incurable disease.this issue of monogamy could indeed lead some men to pursue unlawful marriages in violation of the Sharia Law. There are both positive and negative aspects to polygamous marriage. According to the laws that protect women, if there is personal necessity (for polygamy) and there are no objections, then it is deemed acceptable. Support for the family, housing and expenditures for the children is a joint responsibility between the husband and wife. If the wife refuses to contribute to the family expenditures, the law allows the husband to cancel the marriage contract, as her actions are in violation to the Sharia Law. Divorce is not realized from the decisions of a spouse only, but requires the court s approval which is acquired after the case is presented to the appropriate committees who make the final ruling. Family Law No. 3 was applied in Yemen s north and was derived from Islamic Sharia Law. It was the first law to organize the family relations in the Yemen Arab Republic after the Yemeni reunification on May 22, In 1992, a decree was issued to put regulations on marriage, wills, and inheritance. After the law was applied, some problems arose which made plain the fact that amendments were necessary. The law was later amended in 1998 under Amendment No. 24 (1999). The amendment included just two articles and was not received well by women. The most recent amendment, which contained one article, was made in 2003 upon request from the National Committee for Women. The present-day Yemeni law was derived from the feedback of public jurists who provided strong evidence. The law was made in conjunction with the Yemeni culture and traditions. The details of the law are as follows: Marriage contracts which are set in advance are the most dangerous since the 14

15 marriage is preceded by engagement which is the right of the man only. It is followed by the contract between the husband and wife and their agreement and acceptance. The authority belongs to the man although it has a sort of honoring and esteem for the woman because this contract is to be highly valued. Documentation is not obligatory and those who hold no documentation are not liable to penalty. The law of 1992 stipulated that small children, both male and female, should not be found in marriage. This article was later amended and lead to the increase of childhood marriages especially in rural areas. This movement towards child marriage is the result of tribal thinking and the fear of missing the opportunity to marry, or for reasons related to corruption. The government as well as non-government organizations are claiming that the marriage age will be raised in the future. Yemen ratified the Child's Rights Document and the CEDAW Agreement which oblige the signing states to set a suitable age for marriage. Although the man has the full right to divorce, the law of 1992 gave the woman the right for compensation if the divorce is arbitrary. However, this notion was altered so that the woman is given the right of compensation through annulment. Expenditures are the responsibility of the husband and they have not been the responsibility of the wife at any time in the past, however, they could fall on the wife if she refuses to live in the marital house or if she worked outside the house without the approval of the husband. The National Committee for Women made great efforts in introducing the rights of women and it resulted in the approval of the Minister s Cabinet for some of the committee s proposals. Seminar Day 2 - Sunday, December 13 th, 2009 Field Visits to the Ministry of Justice and the Capital City's Southwestern Court. Seminar Day 3 - Monday, December 14 th, th Presentation: "A Comparison between the Yemeni and Moroccan Family Laws" (Dr. Mohammed Nijad & Dr. Yahya Al-Khazan, Sana a University) The first speech was made by Dr. Yahya Al-Khazan who talked about the Islamic Sharia and how the Yemeni Personal Status Law is derived from it. Dr. Al-Khazan pointed out that the 15

16 Islamic Sharia is not based on one particular approach, but rather three pillars, which are: 1 - The first trend (sectarian) 2 - The second trend (non-sectarian) 3 - The third trend (sectarian bypass) The first trend is the one which made the stipulation counter the opinion, and the second direction and went out of the Islamic world and which exaggeration and neglect happened to it and concerning the third direction, exceeding the non-sectarian ideology and taking from other methods, while the Moroccan law depended on the Maliki ideology, the Yemeni legislator has depended on the non-sectarian ideology direction which is taking from all ideologies and not to be limited with any ideological thought in order not to be restricted, and the Yemeni law has passed through two phases which are before the and after the unification. Prior to the unification, there were two laws: one for the north and one for the south. After the unification, the law of 1992 was issued and later amended in three phases (1998, 1999, and 2003). The formulation of the Yemeni law was difficult due to the fact that they were merging aspects of the southern law with that of the north. Among the more positive aspects of the Yemeni law was the guardianship in marriage. This was intended to protect women in the midst of marital disputes, encouraging the relationship to be based on mercy and love. With regards to the issue of polygamy, there is a difference between approval of polygamy and the guarantee of polygamy. Dr. Al-Khazan spoke about the positive and negative aspects of polygamy with regards to the Yemeni law. The law of 1992 was considered to give more guarantees than the law of 1998 because of its condition that husbands must inform their wives before marrying additional wives. Polygamy is exceptional and reserved for special situations. Next, Dr. Mohammed Nijad delivered a speech on the similarities and differences between the Yemeni and Moroccan laws. Dr. Nijad concluded that both laws contained several of the same chapters and paragraphs. Although there were differences in the introductions, that should not discount the striking similarities within the chapters. The Moroccan law can also be distinguished by its control of the procedures and its canceling of the term "obedience". Also, the Moroccan law was derived from Maliki ideology while the Yemeni law was not based on any particular ideology. Both laws were created with respect to the traditions, customs, and unique background of the society. In terms of authority and guardianship, we find no differences between the Moroccan and Yemeni laws. In the Moroccan law (Article 25) authority is given to the guardian through the approval of the woman, which is a condition of the contract. Should the woman refuse to grant her approval on the marriage contract, then the contract is invalid. Article 10 then offers protection to the woman by stating that any contract constructed by force is considered 16

17 invalid by Islamic Sharia Law. This applies to both husbands and wives. Article 23 includes the stipulation for women even if its visible side is different its inward is agreement. In terms of the legal marriage age, the amended Yemeni law (Article 14) considers 15-years of age to be legally mature; however, if the woman is physically prepared for sexual intercourse, then this law is not applied. Conversely, if the woman is of legal age, but not physically prepared for sexual intercourse, then she is ineligible for marriage. The Moroccan Law set the legal marriage age at 18-years. In cases of marriage with persons who are insane or mentally instable, the Yemeni law treats that case the same as it would a case of marriage of the mentally retarded and from the issues agreed upon. The Moroccan law prohibits polygamy (Articles 40, 41, 42, and 43) by making it illegal to marry over a current wife. The requirement that the original wife must provide approval of the second marriage is a way of safeguarding from unhealthy polygamous marriages. The justification might be to restrict the allowed for the interest and the original is the prohibition and not the restriction. The original Yemeni law allows polygamy as long as the condition to notify the first wife is met. The shortcoming of the Yemeni law is that there is no way to verify that the first wife in fact was notified about the new, forthcoming wife. The Moroccan law is distinguished as being precise in the contract procedures to determine rights, while the Yemeni legislator, on the contrary, did not fix this procedure with the same precision. Yemeni divorce by law requires official documentation while a Moroccan divorce falls under the authority of the Moroccan judiciaries and can be finalized without documentation in the presence of a judge. Yemeni Law Articles also stipulates that after a divorce of a particular woman, her return to that particular marriage is prohibited, thus making divorce final. 5 th Presentation: "The Role of the Moroccan Family Law in the Path of the Moroccan Women s Movement" (Dr. Fatima Sadiqi, University Sidi Mohammed Ben Abdallah Fez of Morocco) Dr. Sadiqi began by clarifying two basic issues: 1. The women s movement does not belong only to women, but it is meant for men, women, and organizations who wish to improve women s standing in the social, legal, political, and economic arenas. Most of those who are seeking for reform in those areas are well- 17

18 educated people living in urban centers. The most important features of the Moroccan women s movement are the journalistic, academic, collective, and in recent years, the religious sphere. 2. Advocating for the rights of the women was never solely the work of Moroccan women, but on the contrary, several men have been recognized for their contributions to the movement. Men such as Allal Al-Fasi and Hassen Al-Wazani, around the time of the independence of Morocco, and later, Abdulhadi Al-Tazi, Abdulhaq Al-Marini, and Saeed Al-Saadi more recently. From the beginning, these men have been considered as influential as the women in the Moroccan women s movement. The most distinguishing aspect of the Moroccan women s movement is its continuity; it is a movement with a documented history. The recent achievements, such as the reforms of 2004, were not a gift from the west but rather the fruit of this continuity. Furthermore, the foundation of this continuity may in fact be the Family Law. But how is that so? To answer to this question, Dr. Sadiqi said we must view the Moroccan women s movement from the beginning in its historical and socio-political frame. The Moroccan women s movement began in the 1940 s (1946, to be exact) prior to the Moroccan independence which took place 10 years later. Dr. Sadiqi mentioned that in her opinion, it began when a women s association called "Sisters of Serenity" presented a document with the name, "The Document". The document contained three demands: the right for political representation, reform in the law regarding polygamy, and the right to dignity at home. It is worth mentioning that this document was entered as the first Moroccan woman voice in the anthology, "Women Writes North Africa", which was supervised by Dr. Mohe Al-Nagi and two female colleagues from Egypt. The birth of the Moroccan women s movement is closely linked to the demand of legal rights for women. This link has remained strong even to this day. By way of highlighting this idea, the paper concentrates on the most important events of the Moroccan women s movement. The first topic covered was the ten years which came after the independence and more specifically, the period of time between 1956 and the late 1970 s. When Morocco gained its independence in 1956, the women s issue was not among the nation s top priorities. The priorities of Morocco at that time were limited to three major projects: building a strong state, guaranteeing an honorable place within the Arab Nation, and advancing Moroccan cities, which were considered at that time part of "the beneficial Morocco". With this ideological background, the first Moroccan Personal Status Law was issued between November of 1957 and January of 1958, immediately following the independence of Morocco. As mentioned, the law treated women unfairly and consequently lead to the demands of the 18

19 Sisters of Serenity who linked the voices of the pre-independence with the period that followed. This was clearly demonstrated in the journalistic works of prominent females such as Melikah Al-Fasi, Zahrah Al-Sharaibi, and Fatimah Al-Qabaj. The spread of education in the cities, academic discourse, journalistic works, and the political movement served to make clear the demands of women in Morocco. Supporters of legal rights for women began supporting the leftist opposition, thus linking the movement for women s rights with the call for social democracy and freedom of expression. At the time, the movement was expressing the anger and disappointment of thousands of women who were fighting for the independence of Morocco, the nation which had deprived them of their basic human rights. From then, press articles increased, Arabic novels and other books from leftist authors like Khanatha Bannunah and French works from authors like Fatimah Al-Marnisi and Zakeya Dawood were also published. So the movement in Morocco continued. The decade after the Moroccan independence produced more male and female leaders who contributed to the Moroccan women s movement. It is important to note that these leaders, in spite of their liberal viewpoints which came in light of the historical and sociological circumstances, revered the Islamic religion and realized the importance of Islam in Morocco. Likewise, their demands were made in such a way that aligned themselves with Islam instead of opposing it. This was crucial for the Moroccan women s movement and one of the key reasons for its continuity. The first generation of activists within the women s movement was motivated by the basic principle that the interactions between men and women were not based on religious convictions but by social practices which had used religion falsely for justification. For example, the sexual purity of women was linked with the honor of men and family. This link was defended by planting its roots in Islam, but to the activists, the aim of this link was to control women. It was a part of the Moroccan society but had no true origin in Islam. In the late 1980 s and early 1990 s, three events took place which had a direct impact on the Moroccan women s movement. Some of you might remember these events, whose effects are still visible in our current situations: 1. The success of the Iranian revolution; 2. The fall of the Soviet Union; 3. The emergence of the United States as the top world power. In the 1990 s, Morocco started feeling the effects of the Iranian revolution and the projection of America after the cold war concluded. Like many of the Islamic states in the modern era, Morocco began to see a revival of political Islam. 19

20 At the same time, through improved education and more contacts with international movements, either via the media or through travel, the Moroccan women participated in Moroccan political discussions. Women started to become more aware of the obvious disparity in the legal treatment of women. New ideas were birthed about the role of women in Moroccan society and many began asking questions concerning practices which were for a long time considered to be Islamic in their origin. Also after the Moroccan independence, a change occurred in the strategy of the Moroccan women s movement. The movement began concentrating on the importance of religious values in the formation of society and international relations. As a result, the veil became a mechanism which was used to declare the presence of women in society and gain respect in religious dialogues. The last decade saw a tremendous increase of Moroccan women who played active roles in the Islamic associations and political parties. The veil also confirmed important differences between men and women in Morocco. To many men, Islamists included, the veil remains a sign of Islamic membership and traditional devotion. But to many women, the veil symbolizes freedom and their joining into Moroccan society. Supporters of equality and liberal activists of the Moroccan women s union took notice of the veil s effectiveness and encouraged dialogue with the veiled activists from the Islamic camp. Evidence of this cooperation was seen in the increased use of the Arabic language instead of French and religious discussions with a deep understanding of the Holy Qur'an. It was then when people began to distinguish the authentic Islam from the prevailing traditional practices. From the late 1970 s to the early 1990 s, the collective voices from academia and the media had become a powerful force of support for the women s movement. When women started talking about their rights as a part of society, they gained the confidence of other rights groups as well as the Royal Institution. At this point, many who had once been part of the opposition began supporting the Royal Institution to reform the Personal Status Law. The result of these events was the reforms to the Personal Status Law in September of It is true that these reforms were not at the required level, but held symbolic importance. These reforms demonstrated that the Personal Status Law was not immaculate or written in stone, but it was, in fact, like other legal drafts, subject to criticism and revision. From the early 1990 s to the present-day, activists for equality and the women s movement have invested more efforts in civic associations as opposed to political parties. This lead the movement to adopt a wider focus that encompassed the whole Moroccan society. The 20