Beijing Law Review
2013. Vol.4, No.4 147-154
Published Online December 2013 in SciRes (
Open Access 147
Application of the New Moroccan Family Code
in Spain (with a Gender Perspective)
Gloria Esteban de la Rosa
Public and Private Law Department, University of Jaén, Jaén, Spain
Received January 14th, 2013; revised February 22nd, 2013; accepted March 18th, 2013
Copyright © 2013 Gloria Esteban De La Rosa. This is an open access article distributed under the Creative
Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium,
provided the original work is properly cited.
The application of the Moroccan Family Code by Spanish legal operators is not simple, to the extent that
it is not only a question of knowing its contents, but also, behind each of its articles and, relating to the in-
stitutions contained in the Code, there is a specific understanding of the world and, more specifically,
family relations. The Spanish system of Private International Law is to serve as a “communication chan-
nel” between legislations which are beginning to coincide due to the new private international situations
taking place in Spain, as a new foreign population begins to settle, in particular when it comes to female
Moroccan immigrants. In these cases, Moroccan family law may be applied or considered by the Spanish
authorities, favouring thus the recognition of decisions taken in Morocco.
Keywords: Moroccan Family Law; Implementation of the New Moudawana in Spain; Dowry; Mut’a;
Dissolution of Marriage by Talaq and Tatliq; Revocable Dissolution; Public Policy
The Moroccan Family Code (FC) which came into play on
5th February 2004 repealed the Code of Personal Status and
Inheritance (1957-58), better known as the old Moudawana
(summary). On 23rd January the Moroccan Parliament unani-
mously approved the new Code. On 5th February 2004 this was
published in the Official Gazette of Morocco (No. 5184). For a
better understanding of this new text overseas, the Ministry of
Justice has prepared a French translation, which is accompanied
by a commentary on each of its provisions, in order to guide the
user in the direction of reform.
The current FC is made up of 400 articles, which regulates in
six Books: Marriage (Book 1), the dissolution of the bonds of
matrimony and its effects (Book 2), Birth and its effects (Book
3), Legal capacity and representation (Book 4), Wills (Book 5),
Inheritance (Book 6). Book 7 contains a collection of interim
and final provisions.
The FC is based on tolerant Islam which honours man and
preaches justice. As highlighted by the King of Morocco on the
occasion of the opening of the autumn parliamentary session of
2003, the FC should be interpreted as a policy aimed at the
entire family, which serves several purposes: to overcome the
inequality that weighs upon women, to protect the rights of
children and to preserve the rights of man. The Sovereign tried
to reconcile in this way, the development requirements of the
country whilst ensuring family rights were upheld. This new
legal instrument is both linked to the precepts of Islam and the
rules of universally recognized Human Rights.
In this way the FC is based on the principles of Islam as an
egalitarian and tolerant religion, given that, despite the views of
other more radical legal schools, Islam can be a source of mod-
ernity. There is, however, still debate over ijtihad, between
those who consider the interpretation to be dangerous and those
who are in favour of it.
This has gradually become a formal debate, given that the
interpretation is considered to be not only necessary but, to all
intents and purposes, indispensable, as, of the 80 verses con-
tained in the Koran dealing with the rules of Law, many are not
applicable in our times as the historical context for which they
were written no longer exists.
For this reason, the Monarch of Morocco issued a FC, with
the conviction that Islam gives women a number of rights, to be
regulated and exercised by them. Thus, the Code advocates
ijtihad, which, as seen above, is the interpretation of the Koran
in the context of modern society and its demands, contrary to
patriarchal hierarchy and designed to validate arguments pre-
sent in sacred legal texts.
Like other Muslim countries, Morocco applied classical
Muslim law, which led to the birth of various rites or schools
(see below for more detail). On issues of personal status, Mo-
rocco followed the mali kí doctrine up until the enactment of the
Personal Status and Inheritance Code (previously Moudawana).
In this sense, 400 articles of the current FC stated that, for all
issues not addressed by a text in the present Code, reference
may be made to the Malikite School of Jurisprudence and to
ijtihad (juridical reasoning). This came about in response to the
need for a norm to regulate family relations in accordance with
the precepts of the Koran, above all to end “Urf” Law (on local
customs and practices).
The Moudawana responded to this purpose, but furthermore
it captured the situation of discrimination lived by women
throughout the 1950s. Although there had been previous spe-
cific reforms (1993), family law underwent a significant change
with the entry into force in February 2004 of the FC, which
repealed the Moudawana. Women’s associations had been
calling for this reform for decades. King Mohammed IV made a
speech to parliament on 10th October 2003 in which he out-
lined his intention to preserve the principles of Islamic legisla-
tion whilst considering the social evolution undergone by Mo-
roccan society.
The Code contributes to the construction of an open, pro-
gressive, democratic society, based on the protection of wo-
men’s rights. As stated in the Doctrine, in the Maghreb, both
family and society are undergoing a double evolution: firstly,
man no longer dominates woman, except in legal issues, and a
father no longer dominates his children (Fargues, 1996).
The Moroccan Family Code
of 2004: Main Modifications
The FC clarifies the concept of head of family, in that it con-
siders the sharing of responsibility between the two spouses a
necessary condition for the construction of a family, and unde r-
lines the importance of mutual comprehension and consent in
managing all issues relating to the family. Article 4 FC states
that: “Marriage is a legal contract by which a man and a
woman mutually consent to unite in a common and enduring
conjugal life. Its purpose is fidelity, virtue and the creation of a
stable family, under the supervision of both spouses according
to the provisions of this Moudawana”.
It also annuls the wilaya, so that a woman can enter into mat-
rimony without the consent of a legal representative. Article 25
of the FC states that: “The woman of legal majority may con-
clude her marriage contract herself or delegate this power to
her father or one of her relatives”. A dowry must be presented
(according to article 26 FC). However article 13 of the FC, on
the requirements of marriage, refers specifically to there being
“no intention or agreement to cancel the dowry”. Finally, the
aspect of the regulation of marriage which causes greatest con-
troversy in the eyes of Western legal sy stems i s the requi reme nt
that a woman marries a Muslim.
Although polygamy is upheld, some limitations have been
introduced, so that a man needs court approval to marry for a
second or successive time. Repudiation and polygamy have
been well received in Arab countries as a result of a surplus of
women in the marriage market. However, this is not a natural
excess, but is rather the product of a society, the arithmetic
result of a rule (the universality of marriage) and a custom (the
big age difference between spouses), which have led to a patri-
archal model of the fa mily. Polygamy is nevertheless quite rare
in contemporary Maghreb. A judge will not give authorization
until he is certain that it is fair to the wives.
Article 40 of the FC states that: “Polygamy is forbidden
when there is the risk of inequity between the wives. It is also
forbidden when the wife stipulates in the marriage contract that
her husband will not take another wife”. The woman can also
introduce as a condition in the marriage contract that, if her
spouse marries again, she has the right to file for divorce.
The FC has also simplified the procedure to be followed by
Moroccan Muslims who wish to enter into marriage overseas.
They can celebrate the marriage according to the local adminis-
trative procedures of their country of residence, provided that
the conditions of consent (offer and acceptance), capacity and
offering of the dowry are fulfilled, and the ceremony is held in
the presence of at least two Muslim witnesses. A copy of the
marriage contract must be submitted within three months of its
conclusion to the Moroccan consular section (articles 14, 15
The celebration of marriage is said to be valid if the parties
are in agreement, expressed through offer and acceptance. Mo-
roccan case law prior to the entry into force of the new FC tried
to relax and facilitate the marriage of Moroccans abroad. The
sentence of the Supreme Court (no. 835) of 19th June 1990
(Dossier of the Supreme Court 86/8331) considered a marriage
celebrated in a non-Muslim country to be valid, even though
the adouls (public notaries) were not present when the marriage
was celebrated. The claimant’s situation was exceptional, given
that he brought together 12 people who were present at the act
of celebration of the marriage and the party which followed,
who were able to act as witnesses.
Regarding the dissolution of marriage, this can occur through
taliq or talaq, as well as through death of either spouse, (or the
issuance of a judgement declaring him or her deceased when
there is uncertainty surrounding the fact), through the existence
of a defect (noted at the time of celebrating the marriage), or
other causes stipulated in the Code (article 71). Finally, another
relevant provision is article 128 of the FC, which allows recog-
nition in Morocco of decisions rendered by foreign courts con-
cerning divorce through tatliq or talaq, through mutual consent
or annulment, as long they are issued by a court with jurisdic-
tion over the matter and are based on grounds for terminating
the marriage relationship that do not contradict those contained
in this Moudawana.
In any case, the conditions and procedures laid out in articles
430 - 432 of the Code of Civil Procedure must be met. Ap-
proved by Dahir, 28th September 1974 (Official Gazette of
Morocco 30th September). These provisions constituted a sig-
nificant step for the modernization of Moroccan private inter-
national law, together with the reform of the legal system by
Dahir on the 26th January 1965 (Official Gazette of Morocco
3rd February 1965), which eliminated the duality of jurisdic-
tions present until this time. This new regulation incorporates
the jurisprudence of the Supreme Court of Morocco in the ap-
proval of decisions taken overseas.
Difficulties in Applying the New Moudawana
The application of the FC by Spanish legal operators is not
simple, to the extent that it is not only a question of knowing its
contents, but also, behind each of its articles and, relating to the
institutions contained in the Code, there is a specific under-
standing of the world and, more specifica lly, family relations.
Furthermore, the provisions present in the FC cannot be read
disregarding the fact that Islam is the official State religion in
Morocco, recognised as such under the constitution, on the one
hand and, on the other, that the Code is the part of positive
Moroccan Law most highly influenced by Islamic Law, given
that following Independence many of the Codes adopted during
foreign domination (French Protectorate) remained valid and
have never been substituted or replaced with other texts.
For this reason, the FC is not exempt from religious influ-
ence in Morocco, but rather King Mohammed VI has emerged
as the sole interpreter of the Code (in his capacity as Com-
mander of the Faithful), despite approval being submitted to
Parliament. And, in so far as the King stands as supreme inter-
preter of its provisions, the authorities of the court order will
have to follow his ijtihad.
The provisions of the Code are for personal application, of
Moroccans (Muslims), regardless of whether or not they hold
another nationality, whilst residing in Morocco but also over-
seas. Along these lines, although article 2 of the FC was not
Open Access
included in the old Moudawana its contents cannot be consid-
ered new, given that Morocco is a Muslim state and the aim of
the FC is to regulate the homogenous relationships between
Moroccan Muslims, be they refugees or stateless persons.
In the latter case, the extraterritorial application of its provi-
sions means that the family relations of Moroccans are gov-
erned by the FC, even when they reside overseas, because all
people who are believers or are faithful, are ruled by religious
Law regardless of nationality. Nevertheless Moroccans of Jew-
ish faith shall be governed by the provisions of the Hebraic
Moroccan Family Law (article 2).
In the specific case of Morocco, regarding the interpretation
of Islamic Law, the doctrine which prevails is that of the Maliki
School which permeates at all times the sense of its provisions.
From this perspective, it is important to consider that the reve-
lations of the Prophet constituted a major change in the under-
standing of social relations, which is not, however, considered
sufficient in our time for the defence of actual equality for
women (equal opportunities) within the family and society.
The sentence of the Provincial Court of Jaén no. 175/2012, of
18th June (JUR 2013\139157), is a good example of the diffi-
culties a correct application of the Moroccan FC can present to
Spanish authorities. This case dealt with an issue relating to the
capacity of a Moroccan woman married to a man of the same
nationality to officially bind him to a loan agreement of indus-
trial machinery to be used by a family business, signed by both
The lack of a correct understanding of article 51 of the FC
prevents an adequate defence of the defendant. It was consider-
ed a question of wife’s capacity, but, in fact, it was a problem
of her consent to sign the loan (with his husband).
Analysis of Spanish Jurisprudence
Marriage: The Dowry
The celebration of marriage is a universal right (ius connubii).
In Spain, article 32 of the Constitution protects this right, but at
the same time, refers to the law that regulates it and, in turn, the
law has left plenty of scope for people to choose the way of
celebrating their marriage.
As is known, in Spain, the marriage system is unique, con-
sisting of dual forms: civil and religious, and whose effects,
regardless of the type of ceremony, will be the civil. The cele-
bration of a marriage is configured as a solemn act, in which
consent has to conform to certain formalities, and at which an
authority figure must be present, giving rise to the relationship
between the authority and the form (lex magistratus).
In general, under Muslim Law, a man must hand over a
dowry to his wife as a symbol of his desire to enter into mar-
riage with her, as foreseen in the current Moroccan Family
Code. Article 13 of the FC states that: “The conditions required
to contract marriage are: The legal capacity of both spouses to
marry; No intention or agreement to cancel the dowry; A mari-
tal tutor (wali), if required; The hearing and notarized state-
ment by two adouls (public notaries) of the offer and accep-
tance pronounced by the two spouses; The absence of any legal
impediments”. The dowry is fundamentally a requirement for a
valid marriage celebration. Furthermore it plays an important
role in cases of dissolution or if the husband dies, given that it
is a debt to his wife.
That is, it offers economic security to the wife before such
situations. The FC foresees that: “The dowry is that which the
husband gives to his wife as an expression of his desire to
marry her and to build a stable family based on affection and
good amicable relations between husband and wife. Its legiti-
macy is based on its moral and symbolic value rather than its
material value” (article 26).
The legislature makes clear that its value is symbolic, not
material, so it cannot be regarded as a payment, rather as a no-
tion that is the product of the historical circumstances of a spe-
cific time and at the same time, of both economic and social
changes experienced by the present Moroccan society. Along
with this, the legislature has gone further in stating, in article 27
of the FC, that: “The dowry amount is specified upon the con-
clusion of the marriage contract, and in the event it is not
specified, the marriage is deemed one of entrustment”. The
wife is entitled to the full dowry after the consummation of the
marriage or before that time if the husband dies before con-
summation has taken place (and also in cases of “marital pri-
If not delivered in full (if it is a sum of money), at the time of
the celebration of marriage, it becomes a debt acquired by the
man towards the woman which will eventually be inherited by
his heirs. For this reason, the treatment of the dowry in such
cases could be considered closer to the field of property law,
and not family law, given that it is an actual debt which can be
claimed in court.
The lack of correspondence at present of the dowry in Span-
ish legislation has led the courts, even those inclined to its rec-
ognition, to resolve inadequately those cases that have been
raised by spouses united by marriage according to their per-
sonal law or in a mixed marriage, when one party holds either
Moroccan nationality or that of another country where the
dowry exists.
From the point of view of marriage in Spain, the require-
ments present could be considered a limitation inconsistent
with the freedom to marry and contrary to the principle of
equality and, therefore, a public policy issue. If a female Mo-
roccan immigrant claims before the Spanish authorities the
payment of her dowry, it would not make sense—as has hap-
pened previously—that her claim be dismissed simply because
the dowry constitutes an institution which does not currently
exist in Spanish legislation. This response is inconsistent with
women’s rights, given that she should be protected by a foreign
legislation. In any case the relevant public policy must tread
The doctrine has made a series of proposals to determine the
legal status of the dowry in Private International Law according
to its function in each case: if it regards questions of alimony,
the applicable law is the law governing alimony between
spouses, if it operates as a pension paid on death of the husband,
the applicable law should be the law governing the succession
(article 9.8 of the Spanish Civil Code, CC from now on), and,
finally, if the existence or non-payment of a dowry affect the
validity or nullity of marriage in Spain, it would be inconsistent
with public policy. This is what happened in the famous case
resolved by Judgment no 5/2004 of the Provincial Court of
Castellón (Section 3), January 21st, 2004, where an appeal was
made (by a woman) against the verdict offered by the court.
The interested parties were married in the Islamic way in the
Embassy of the Republic of Iran in Spain. During the celebra-
tion the man promised the woman a dowry of 3000 euros.
Before the court’s decision rejecting the claim for the pay-
ment of dowry, the appellant (an Iranian) was directed to the
Open Access 149
AP, who reiterated the arguments of the court: on the one hand,
the marriage was not celebrated validly in Spain, nor was it
registered in the Civil Registry. On the other, the dowry is con-
sidered an effect of marriage, regulated under article 9, 2 of the
CC and therefore under Spanish law, which does not recognise
the dowry at present. And finally, proof of the Law of the Re-
public of Iran (a requirement of the Spanish Supreme Court)
was not provided.
In any case, a claim petition for payment of the dowry would
not be covered by article 9.2 of the CC, as, according to the
Moroccan FC, it shall not be considered an effect of marriage,
but is rather a requirement for the valid celebration of the mar-
riage, without which a marriage is invalid. On the other hand, if
the dowry is considered through the application of article 9.3 of
the CC, that is as an aspect included in the property regime of
the marriage, it would not correspond to its meaning in the
Moroccan Law which states that its value is symbolic, and not
economic or material.
For this reason it can be said that Private International Law
does not yet hold the necessary instruments to respond to ques-
tions raised by the dowry, as regulated in the FC. From the
perspective of the Spanish system of Private International Law
the dowry should be considered a condition for the valid cele-
bration of marriage, when celebrated on Spanish soil, in a le-
gally recognized religious form, and, in particular, under Is-
lamic faith. And in cases where a delegated marriage has been
celebrated (as stipulated in the Moroccan FC), and the woman
claims her dowry before the Spanish authorities, a possible
classification of the case under the system of Private Interna-
tional Law is that of debt (financial).
Dissolution of Marriage
Is This Regulation Incompatible with Public Pol icy?
The regulation of the dissolution of marriage, according to
the FC, maintains—largely—the religious comprehension of
family and social life. This is the main reason why such
changes have not had a decisive impact on the understanding of
the function of the dissolution of marriage in Moroccan law.
Talaq consists of a unilateral dissolution presented by one of
the spouses, usually the husband, given that if the request is
presented by the woman she must first seek her husband’s con-
sent (arts. 78, 79 and 89 FC), either because this right was
handed over at the moment of celebration of the marriage
(talik), in exchange for compensation (julc) or for the remain-
der of the dowry if it has not been paid in full.
Court authorization is required in any case. Article 79 of the
FC states that: “Whoever wishes to repudiate must petition the
court for authorization to certify the repudiation by two adouls
(public notaries) accredited for this purpose in the judicial
district of the conjugal domicile, the wifes domicile or place of
residence, or the place where the marriage contract was issued,
in that order”. And article 115 refers specifically to mutual
consent (julc), considered a form of divorce (article 72 FC). As
declared by the Moroccan High Court, in Sentence of 13th
January 1998, this mode of dissolution is invalid if the woman
is not present. In the stated case, the woman did not attend the
act of julc.
The court will also determine an amount to be paid in com-
pensation to the woman (mutca) for damages caused by the
dissolution of the marriage, assessed based on the length of the
marriage, and the degree to which the husband has abused this
right, etc. (art. 84 FC).
The Sentence of the Provincial Court of Barcelona 582/2010,
14th October, on the dissolution of a marriage between two
Moroccans, considers the mut’a to be equivalent to the com-
pensatory pension in Spain. On the other hand, the doctrine of
the Constitutional Court is applicable, as in the well-known
Sentence 10/2000 of 17th January, under which the court has to
use all means at its disposal to bring the foreign law into the
proceedings, when the actor has brought a minimum indication
of proof of its content. The wife may petition for divorce taliq
if one of the causes stipulated in article 98 of the FC occurs.
These are: Non respect by the husband of one of the conditions
in the marriage contract; harm; non-maintenance; absence;
latent defect (ayb) or abstinence and abandonment.
Divorce can also be declared through the courts on petition
of the husband if there is reasonable doubt surrounding pater-
nity of his son (article 159 FC). In these cases an imprecation of
adultery takes place, during which the husband must swear five
times, saying “I testify by Allah that I am truthful in charging
her with adultery or that this foetus is not mine” four times and
on the fifth “And may the curse of Allah be upon me if I am
lying”. If the woman denies the accusation, she must swear four
times “I testify by Allah that he is lying about what he has
charged me with”. And the fifth time say “And may the wrath
of Allah be upon me if he is telling the truth. The judge will
honour the divorce as the oaths prove that trust has been lost
between the spouses.
Alongside these the FC offers two new forms of dissolution
of a marriage: by mutual consent (al-talaq b-l-ittifaq) as in
article 114 of the FC, and for irreconcilable differences (taTliq
li a-siqaq), under article 94 of the FC. Both the woman and the
man can ask for these two forms of divorce before a judge.
The question arises whether the fact that the FC regulates the
forms of dissolution of marriage which a man or a woman can
apply for differently is, in itself, incompatible with Spanish
(international) public policy. Firstly it is necessary to delimit
the essential content of fundamental law, as it is not possible to
apply or take into account foreign law, because these aspects
are regulated by rules of necessary application.
For this reason the doctrine is critical of the use of the public
policy of proximity, justified in the limitation of reactions
available to public policy (against a foreign law), demanding a
minimum link in the relationship with the forum (salamé). And
consequently and assessment must be made of the point at
which it is feasible to stop considering the essential content of
fundamental law in order to give way to cultural diversity (le-
gal), insofar as the norms of conflict require the application of a
foreign law.
At present a new interpretation of public policy is called for,
whose objective is to verify to what point fundamental law can
be interpreted in accordance with the value of cultural diversity.
This new interpretation would require consideration of public
policy as being integrated by its more specific contents linked
to comparative law rather than the more general human rights.
For this reason, the application of Moroccan Law cannot be
omitted on the grounds that it is incompatible with Spanish
public policy, as, if the essential content of the rights to equality
are interpreted, and according to the (cultural) guidelines laid
out in Islamic Law, it may be understood that the differences
have been upheld (ounnir), and are present in the way dissolu-
tion of marriage is conceived.
So, public policy must act in a way which is not only attenu-
ated but also limited, that is to say more as a clause than as an
Open Access
exception—as stated above. On the other hand, as stated by the
doctrine (borrás), it is necessary to increase the adaptability of
the action of the rules of application (of the rule of conflict) and,
specifically, of the public policy, as this can no longer be inter-
preted in the sense that a foreign law must cease to be applied
for the mere fact that it contradicts the basic principles of the
forum legislation, given that this solution may be unjust from a
material point of view in the current context of the formation of
immigrant and multicultural societies.
The difference lies in the fact that a clause can be clarified,
whilst the action of the exception takes place before circum-
stances which are assessed as public policy issues. According to
the Savignian concept of public policy, this was the expedient
necessary to impede in the forum the application of foreign
laws not pertaining to occidental civilisations and, especially, in
the historical context examined by this author, in the Ottoman
For this reason, the conflict between civilisations was latent
in such a proposal and, from there, the function of public policy
as an exception stems In any case, it is important to consider
the notion of social integration as seen from the perspective of
Private International Law, which requires that the connection
which is established in the forum be recognised under the leg-
islation of origin (recognition method).
The use of public policy as a safeguard clause allows con-
sultation of the foreign Law and its application when this is not
incompatible with the essential content of the fundamental law
of the forum, as happens in this case, given that the current
regulation foreseen in the FC relating to the dissolution of mar-
riage is not incompatible with the right to equality. The fact that
new ways of dissolution of a marriage have been introduced,
allowing both parties to terminate their relationship through the
same procedure and alleging the existence of disagreements
must also be taken into account (article 97 FC).
Thus public policy becomes a safeguard clause, that is, a
limit on the possibility of the forum accepting the cultural pe-
culiarities or specifications of the foreign law, as this is not
permitted by the sense in which this fundamental law is regu-
lated, not only in the forum’s legislation but also in the interna-
tional community. The critique made of the ethnocentric char-
acter of human rights must also be considered. Finally, and in
any case, even when the foreign law is not to be applied, its
specifications can be considered in order to, for example, pro-
mote recognition of the decision in the country of origin of the
That is, even when the public order clause has impeded the
application of the foreign Law, there remains scope for the
consideration of its specialities as a way to take responsibility
for the free development of the personality and to promote the
recognition of decisions in the home country of the person who
In this way intercultural communication between the legisla-
tions of the country of origin and of residence of the immigrant
is favoured. Thus public policy acts more as a safeguard clause
whose action is limited than as an exception and, in any case, it
is subject to the “recognition method”, as it is also important to
verify—in order to make such a comparison—, whether the
connection established in the forum will be recognised in the
immigrant’s home country.
The District Court ruling of Murcia, number 166/2003 (Sec-
tion 1), 12th May, acts as an example of the action of public
policy as an exception, where even the judicial authority went
to the trouble of finding out the content of a foreign law (in this
case the Moroccan law relating to the causes for the dissolution
of marriage), to prove that the public policy had acted in haste
[Court of Appeal no. 66/2003 (BDA, AC 2003\1676)]. However
this procedure is justified only when public policy is seen as an
exception which, insofar as the authority appreciates the in-
compatibility with the higher principles or values of the fo-
rum’s legislation, cannot stop the exception being used to dis-
card the application of a foreign law.
Nevertheless, public policy as a clause allows the content of
a foreign law to enter, a comparison to be established with the
regulation given by the forum’s legislation, and an assessment
made of its possible incompatibility with the higher principles
or values. The doctrine mentions, along these lines, a specific
public policy dedicated to the defence of fundamental laws
(Hammje, 1997). To do this, the content of the foreign law
must be consulted, compared with the considered fundamental
law, and if it is not compatible with the superior values of
Spanish law, it may not be applied.
The terms of this comparison are: the essential content of the
fundamental law, which expresses the higher values of the
forum’s legislation, on one side, and on the other, the effect
produced by the specific application of the foreign law in the
forum. Now to another sector of the doctrine, public order does
not act against the foreign law as a set of rules, but against a
part of it, made up of concrete and specific rules that conflict
with the principles or values of the forum (Mosconi, 1989).
Legal Separation of Moroccan Women in Spain
Other cases of special interest are those presented at a spe-
cific time period in Spain, where female Moroccan immigrants
filed for divorce from their husbands, of the same nationality.
These requests led to a series of differing responses, cumulating
in the reform of article 107 of the CC, and the birth of Organic
Law 11/2003 of 29th September (Official Gazette of Spain no.
234, 30th September). This modification was related to the
situations of helplessness in which Moroccan women, victims
of abuse, found themselves when, in order to maintain the order
of protection, they were obliged to file a civil action in the
home within 30 days, according to article 544 of the Criminal
Procedures Act (after modification by Law 27/2003, 31st July)
(Official Gazette of Spain no. 183, 1st August 2003).
At that time, the fact that the possibility of filing for divorce
without prior judicial separation was not referred to in Spanish
law thwarted these claims, causing a patently unfair result for
Moroccan women. The dissolution of marriage was governed
by article 107 of the CC, according to which Moroccan law
would be enforced, as both interested parties held that national-
Nowadays, these situations do not occur, because divorce has
become independent of legal separation under present Spanish
legislation, so the Moroccan immigrant woman can divorce in
accordance with the indications of the Spanish law, as provided
in the current Regulation 1259/2010, of the Council of 20th
December 2010, for which enhanced cooperation in the field of
the law applicable to divorce and legal separation is established
(article 5). This regulation became effective on 21st June 2012
(Official Journal of the European Union, Series L, no. 343,
29th December 2010).
Revocable and Irrevocable Characteristics of the
Dissolution of Marriage
Another question which has caused suspicion to the Spanish
Open Access 151
authorities relates to the revocable nature of certain methods of
marriage dissolution expressed in the FC. Specifically, there are
both revocable and irrevocable methods of dissolution, but the
revocable methods stated in the Code also become irrevocable
over time. As a general rule, any divorce granted by the court is
irrevocable, with the exception of cases of divorce on the
grounds of abandonment and non-maintenance (article 122 FC).
Contrarily, any divorce pronounced by the husband (talaq) is
revocable, with the exception of: a third repudiation (presented
by the husband), divorce before the marriage is consummated,
divorce petitioned by both spouses (talik and julc) and divorce
by mutual consent (article 123 FC). There are doubts surround-
ing the possibility to revoke this method of dissolution of a
marriage as foreseen in article 114 of the FC, as it is not strictly
a form of talaq, referred to in article 123.
If the husband wants to take back his wife after a revocable
divorce, two adouls (public notaries) shall certify this and im-
mediately inform the judge, and the wife’s consent is also
necessary [article 124 CF: “The husband may take his wife back
during the legal waiting period (iddat). If the husband wants to
take back his wife after a revocable divorce, two adouls (public
notaries) shall certify this and immediately inform the judge.
Before validating the resumption document’, the judge must
summon the wife to inform her of this. If she does not comply
with this request and refuses to return, she may resort to the
irreconcilable differences procedure in preceding Article 94”].
The length of time for which the dissolution of the marriage
is revocable corresponds to the cidda (legal period of conti-
nence), which is three menstrual months. However there are a
number of exceptions, taking into account whether the woman
is pregnant at the time of declaring repudiation or divorce, or
whether the woman has regular or irregular menstrual cycles, or
is in menopause. The objective of the long-winded regulation of
these cases (article 136 FC) is to avoid any confusion in the
affiliation, as Allah revealed to the Prophet.
When recognition by the Spanish authorities was called for
of a Moroccan decision on the revocable dissolution of mar-
riage, the General Directorate for Registries and Public Nota-
ries (GDRPN) considered that there is no uncertainty about the
circumstances of the ma rital status of the person and therefore it
is incompatible with public policy. Of particular relevance is
the Resolution of 26th October 2006, which denied the registra-
tion of a marriage, given that there was no record that previous
matrimonial ties had been broken, which goes against public
policy (Official Gazette of Spain 13th December 2006).
The case referred to a marriage registration dossier in which
an appeal was brought against a decision issued by the Clerk in
charge of the central Registry Office, rejecting the registration
of a marriage celebrated in Morocco on 10th September, 2000.
The husband was born in Morocco in 1972 and held Spanish
nationality, and his wife was born in Morocco in 1972, of Mo-
roccan nationality. The husband was obliged to present the
original marriage certificate and the marriage license, which
states that he was divorced as of 7th October 1999, a divorce of
revocable nature.
On 17th January 2005, the Clerk of the Registry Office
passed sentence denying registration of the marriage, as previ-
ous matrimonial ties still existed. The divorce was not consid-
ered to be an authentic dissolution of marriage as its revocable
nature meant that the ties had not been definitively broken. For
its part, the GDRPN considers the “application” of Moroccan
law is incompatible with the public policy of the forum, be-
cause it does not provide assurance of the marital status of a
Specifically, the GDRPN considers that although the Mo-
roccan legislation accepts the second marriage as valid, the
foreign law on personal status cannot be applied as: “… the
foreign law, applicable as a rule according to our norms of
conflict, must be excluded in this case by virtue of its conflict
with international public policy (article 12.3 CC), which does
not allow registration of a possibly polygamous marriage as
this infringes on the Spanish concept of marriage and the con-
stitutional dignity of the woman, … in the same way that it is
forbidden during registration in the Spanish registry office to
record the fact that one of the spouses was already married at
the time the marriage was celebrated, neither can the fact that
the divorce from a previous marriage is of revocable nature be
recorded, as dissolution of the marriage by divorce may only
take place by means of judgement declaring the divorce, effec-
tive once the judgement becomes final (article 89 CC).… the
marital status of both parties in this moment is a requisite in
the registration of the marriage.
However, in this case public policy should not prevent the
Moroccan decision of dissolution being recognised and, thus,
registration of the new marriage should take place, paying at-
tention to the regulation in the legislation of the revocable na-
ture of the termination of matrimonial ties (see above). The
position of the GDRPN cannot be accepted for various reasons:
firstly, for the fact that it contemplates recognition of a Moroc-
can decision on the dissolution of marriage and, more specifi-
cally, the issue of the termination of the personal bond of mar-
It is not a question of recognising the possibility of a person,
having terminated his marriage, resuming co-habitation with his
first spouse, if he so desires, as they are, to all intents and pur-
poses, still married. In this case, if both parties wished to re-
sume said co-habitation, it would be necessary to celebrate a
new marriage. Therefore, the issue presented before the
GDRPN is not related to the application of Moroccan Law,
rather to whether or not decisions made in Morocco on the
dissolution of marriage are allowed to take effect before the
Even if this issue had been raised from the perspective of the
application of Moroccan law by the Spanish authority, it cannot
be considered to be inconsistent with public policy, as the fact
that the foreign law governs the termination of the personal
bond of marriage can be accepted, without taking into consid-
eration its revocable nature. That is, if reconciliation occurs, a
couple will be required to remarry.
Consider, on the other hand, the similarities between the
revocable nature of the dissolution of marriage and the status of
legal separation. These similarities mean that the FC cannot be
considered incompatible with the international public policy of
the forum. In short, if the public policy mentioned acts as a
clause, the foreign law may be consulted, in the first instance.
Secondly, it allows for a comparison with the regulation offered
by Spanish legislation and, finally, there is room to assess its
possible compatibility with the superior values of the forum.
The legal-family situation of female Moroccan immigrants in
Spain cannot be treated mechanically; rather, cultural aspects
must also be taken into consideration. To this end, the solutions
Open Access
offered under Private International Law linked to immigration
must respect “cultural identity” and also “cultural diversity
common to these private relationships. Furthermore the Spanish
system of Private International Law must promote the con-
tinuity of the family relations of people who migrate in their
foreign place of origin.
Finally, as part of the gradual formation of multicultural so-
cieties, the understanding of the role of public policy is chang-
ing, to the extent that it acts once the content of the foreign law
is apparent (an action in advance of public policy cannot be
considered), dismissing application of the law if it is contrary to
the higher values of the forum, and provided that it cannot be
interpreted taking into account the foreign cultural specificity
Adam, Mª D. (2004). La modificación del artículo 107 del Código civil
y su incidencia en cuanto a la protección del derecho a la no
discriminación por razón de sexo, Ámbitos. Revista de Estudios de
Ciencias Sociales y Humanidades, 2ª época, núm. 11, 79-92.
ADJJ (2005). Guide pratique du Code de la famille. Rabat: Ministerio
de Justicia.
Aguilar, M. (2005). Los problemas de aplicación de la norma de
conflicto: Una concepción internacionalista y funcional. In AAVV.
Pacis Artes. Obra homenaje al Profesor Julio D. González Campos
(pp. 1133-1150). Tomo II. Madrid: EUROLEX
Borrás, A. (1988). Europa multicultural. El caso de España. In A.
Borrás, & S. Mernissi (Eds.), El Islam Jurídico y Europa. Derecho,
Religión y Política (pp. 159-173). Barcelona: Institut Català de la
Botiveau, B. (1993). Loi islamique et droit dans les sociétés arabes.
París: Karthala.
Cervilla, Mª D., & Zurita, I. (2010). El Derecho de familia marroquí.
La Mudawana 2004 desde el Derecho español. Madrid: Difusión
Deprez, J. (1977). La reforme de l’organisation judiciaire et de la
procédure au Maroc (Dahirs des 15 juillet et 26 septembre 1974) et le
Droit international privé. Revue juridique, Politique et Economique
du Maroc, 3, 45-56.
Deprez, J. (1978). La reforme de l’organisation judiciaire et de la
procédure au Maroc (Dahirs des 15 juillet et 26 septembre 1974) et le
Droit international privé (deuxième partie). Revue Juridique,
Politique et Economique du Maroc, 4, 49-60.
Deprez, J. (1981). Bilan de vingt-cinq années de droit international
privé au Maroc. Revue juridique, politique et économique du Maroc,
10, 125-151.
Diago, Mª P. (2001). La dot islamique à l’épreuve du conflit des
civilisations sous l’angle du Droit international privé espagnol.
Annales de Droit de Louvain, 4, 407-420.
Esteban, G. (2009). Inmigración y Derecho internacional privado.
Madrid: Difusión Jurídica.
Esteban, G. (2011). La integración social de los inmigrantes desde la
perspectiva del sistema (español) de Derecho internacional privado.
In J. Gavidia Sánchez (Ed.). Inmigración, Familia y Derecho
(pp.155-179) . Madrid: Marcial Pons
Esteban, G. (dir.) (2009). La nueva Mudawwana marroquí (entre
tradición y modernidad). Traducción anotada del Código de Familia
de Marruecos. Sevilla: Consejería de Gobernación, Junta de Anda-
Esteban, G., Ouald, K., & Saghir, T. (2007). Comentario a la Sentencia
de la AP de Barcelona, núm. 381/2006 (Sección 12ª), de 8 de junio,
Revista Española de Derecho Internacional, I, 304-307.
Fargues, Ph. (1996). La demografía de la familia en el Magreb: una
clave para la comprensión de la familia. In Mª A. Roque (Ed.), Las
Culturas del Magreb (pp. 137-149). Barcelona: Icaria.
Feldstein, S. L. (2003). El orden público internacional: Una mirada
desde el Derecho internacional privado contemporáneo. In A. L.
Calvo Caravaca, & P. Blanco-Morales Limones (Eds.), Globali-
zación y Derecho (pp. 266-275). Madrid: Colex.
Foblets, Mº-C., & Carlier J.-Y. (2005). Le Code marocain de la famille.
Incidentes au regard du droit international privé en Europe.
Bruxelles: Bruylant.
Foblets, Mª-C., & Loukili, M. (2006). Mariage et divorce dans le
nouveau Code marocain de la famille: Quelles implications pour les
Marocains en Europe? Revue Critique de Droit International Privé,
Gannagé, L. (2006). Le relativisme de droits de l’homme dans l’espace
méditerranéen. Regards du proche-Orient sur la reconnaissance en
France des répudiations de droit musulman. Revue International de
Droit Comparé, 58, 101- 1116.
Gaudemet-Tallon, H. (2005). Cours général. Le pluralisme en droit
international privé: Richesses et faiblesses (le funambule et l’arc-
en-ciel). Recueil des Cours, 312, 275-315.
Gavidia, J. (2012). Inexistencia, nulidad del matrimonio y sistema
matrimonial (1st ed.). Barcelona: Bosch.
Gurvitch, G. (2005). La idea del Derecho social. G ranada: Comares.
Hammje, P. (1997). Droits fondamentaux et ordre public. Revue
Critique de Droit international privé, 1-35.
Kreuzer, K. (2008). International Instruments on Human Rights and
Shariah Law. In Vers de nouveaux équilibres entre ordres juridiques.
Mélanges en l’honneur de Hélème Gaudemet-Tallon (pp. 343-356).
París: Dalloz.
Loukili, M. (2010). El reconocimiento de decisiones en Marruecos en el
ámbito del Derecho de familia. In Inmigración e integración de los
inmigrantes desde una perspectiva hispano-francesa en el contexto
de las actuales políticas comunitarias sobre inmigración (285-304).
Granada: Comares.
Mayer, D. (1977) Evolution du statut de la famille en droit international
privé. Journal du Droit International, 453-465.
Miaja, A. (1953). La teoría del desdoblamiento funcional en el derecho
internacional privado. Revista Española de Derecho Internacional,
Mosconi, F. (1989). Exception to the operation of choice of law rules,
Recueil des Cours, 217, 143-200.
Muir Watt, H. (2001). Le modèles familiaux á l’épreuve de la
mondialisation (aspects de Droit international privé). In A. L. Calvo
Caravaca, & J. L. Iriarte Ángel (Eds.), Mundialización y familia (pp.
11-24). Madrid: Colex.
Ouald, K. (2001). La regulación de la disolución del matrimonio en el
Derecho marroquí. In J. Gavidia Sánchez (Ed.), Inmigración, familia
y Derecho (pp. 289-314). Madrid: Marcial Pons.
Ouhida, J. (2009). Del Código del Estatuto personal y de las sucesiones
al actual Código de familia de Marruecos de 2004. In G. Esteban de
la Rosa (Ed.), Traducción del Código de familia de Marruecos (pp.
17-42). Jaén: Imprenta Blanca.
Ounnir, A. (2008). La reconnaissance et l’exécution des jugements
étrangers au Maroc. Estudios e Informes sobre la Inmigración
extranjera en la provincia de Jaén (2005-2006), Observatorio
Permanente sobre la Inmigración en la provincia de Jaén, Comares,
Granada, 451-465.
Ourkia, A. (2012). Las fuentes del Derecho malikí y su influencia sobre
el Código de Familia de Marruecos. In G. Esteban de la Rosa, & J. A.
Menor Toribio (Eds.), Estudios e Informes sobre la inmigración
extranjera en la provincia de Jaén (2009-2011) (pp. 340-352).
Comares: Granada.
Pérez-Agote, A. (2005). En la era global: ruptura de ecuaciones y
dicotomías de la modernidad. In A. Ariño Villarroya (Ed.), Las
encrucijadas de la d iversidad cultural (pp. 313-340). M adrid: CIS.
Quiñones, A. (1999). El estatuto personal de los inmigrantes
musulmanes en Europa: Exclusión, alternancia y coordinación de
sistemas. In XVII Jornadas de Profesores de Derecho internacional y
Relaciones internacionales (pp. 181-193). Madrid: BOE.
Quiñones, A. (2004). Ressortissants des pays islamiques résidant en
Europe: quel droit de famille? In Migration et citoyenneté, Actes du
Colloque international organisé á la Faculté de Sciences juridiques,
economiques et sociales Rabat-Agdal (pp. 158-170). Rabat: AME-
Remy, B. (2008). Excepción d’ordre public et mécanisme des lois de
Open Access 153
Open Access
police en Droit internationale privé. París: Dalloz.
Rodríguez, A. (2011). El Estatuto personal de los extranjeros
procedentes de países musulmanes. In: Derecho islámico e inter-
culturalidad (pp. 90-110). Madrid: Iustel.
Ruiz-Almodóvar, C. (2005). El derecho privado en los países árabes:
Códigos de estatuto personal. Granada: Universidad de Granada y
Fundación Euroárabe de Altos Estudios.
Salamé, G. (2006). Le devenir de la famille en Droit international privé.
Aix-Marseiille: PUAM.
Vischer, F. (1976). Der Wandel im Familienrecht und das internation-
ale Privatrecht. In Familienrecht im Wandel. Festschrift für Hans
Hinderling (pp. 320-354). Basel and Sttutgart: Helbing and Lichten-
hahn Verlag.
Zeghal, M. (2006). Islam e islamismo en Marruecos. Barcelona: Bella-