Book 3 — Birth and Its Effects

Filiation is established through the attribution of a child to his or her parents, and it may
be legitimate or illegitimate.

Filiation to the father and mother is considered legitimate until proven to the contrary.

Legitimate filiation is established to the father in cases where one of the paternity
conditions is fulfilled, and it creates all of the legal effects of paternity.

When the filiation of a child of unknown paternity is established by acknowledgement of
paternity or by judicial decision, the child shall become legitimate, acquire his father’s
name and religion, they mutually inherit from each other, and such filiation creates the
marriage impediments and results in the paternity and filiation rights and duties.

Filiation to the mother produces the same effects regardless of whether the children are
the result of a legitimate or illegitimate relationship.

Filiation to the mother is established by:
- the delivery of the child;
- acknowledgement by the mother, in accordance with the conditions cited in Article 160
below;
- judicial decision.

Maternal filiation is deemed legitimate in cases of marriage, sexual relations by error and
rape.

Illegitimate filiation to the father does not produce any of the effects of legitimate filiation.

Adoption has no legal value and does not result in any of the effects of legitimate
filiation. “Gratitude adoption” (jaza) or “testamentary adoption” (tanzil) cannot prove
paternity, and are subject to the terms of the testament.

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 Chapter II: Of Paternity and Modes of its Proof

Paternity is a legitimate bond between the father and the child that is transmitted through
generations.

Paternity is established by presumption and may only be refuted by judicial decision.

Paternity is established by:
1- the conjugal bed;
2- acknowledgement;
3- sexual relations by error.

The conjugal bed is proven by the same means used to prove the marital relationship.
The conjugal bed that meets the required conditions is irrefutable proof of paternity, only
subject to disavowal by the husband through a sworn allegation of adultery committed
by his spouse, or by means of an irrefutable expertise, upon two conditions:
- The husband must present solid proof of his allegations;
- Issuance of a judicial decision ordering the expertise.

The paternity of a child is proven by the conjugal bed:
1- If the child is born six months after the marriage contract was concluded and the
opportunity for sexual intercourse has existed, whether the marriage contract is valid or
defective;
2- When the child is born during the year that follows the date of separation.

If a pregnancy results from sexual relations by error and the woman delivers within the
minimum and maximum statutory pregnancy period, the child’s paternity shall be
attributed to the author of the sexual intercourse.
Paternity due to sexual relations by error is established by all legal means.

If an engagement takes place by an offer and acceptance but for reasons of force
majeure the marriage contract was not officially concluded, and during the engagement
period the engaged woman shows signs of pregnancy, the child is affiliated to the
engaged man on the grounds of sexual relations by error when the following conditions
are met:

a- If the two engaged person’s families are aware of the engagement, and if the
woman’s legal tutor, if required, has approved the engagement;

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b- If it appears that the engaged woman became pregnant during the engagement
period;
c- If the two engaged persons mutually acknowledge that they are responsible for the
pregnancy.

These conditions are established by a judicial decision not open to appeal.
If the engaged man denies responsibility for the pregnancy, all legal means may be used
to prove paternity.

When paternity is proven, even if the marriage is defective, if it results from sexual
relations by error, or by acknowledgement, it produces all of the effects of kinship,
including the prohibition of marriage within degrees of kinship and breastfeeding
relations, and creates kinship maintenance and inheritance rights.

Paternity is proven by the conjugal bed, the father’s acknowledgement, the testimony of
two public notaries (adouls), oral testimony, and by all other legal means, including
judicial expertise.

The husband’s paternity of the child and the pregnancy of his wife may only be refuted
by judicial decision, in accordance with preceding Article 153.

Paternity is proven by the father’s acknowledgement of his paternity of the child in
question, even in a “deathbed declaration”, according to the following conditions:
1- That the acknowledging father be of sound mind;
2- That the child’s paternity be unknown;
3- That the declarations of the author of the acknowledgement not be contradicted by
the truth or plausibility;
4- That the child accepts the acknowledgement if she or he has reached the age of legal
majority, and if not, she or he has the right to petition to contest the paternity upon
coming of age.

The designated mother may deny her affiliation to the child or present evidence that
rebuts it.
Any interested party may contest the validity of the existence of the preceding conditions
for acknowledgement provided that the acknowledged person is still alive.

Only the father may acknowledge paternity.

The acknowledgement shall be proven by official certification or by an indisputable
handwritten statement irrefutably made by the person making the acknowledgement

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 Title Two: Of Custody

Chapter I: General Provisions

Custody preserves the child from harm and ensures his or her education and the
protection of his or her interests. The custodian must take all necessary measures to
guarantee the physical and psychological security of the child in his or her custody,
manage his or her interests in the absence of the legal tutor, and as necessary when
then interests of the child in his or her custody are jeopardized.

Custody is the parents’ duty as long as the marriage relationship exists.

If among the people entitled to be entrusted with custody no one accepts it or fulfils the
required conditions, either the party concerned or the Public Prosecutor’s Office may
request the court to appoint whomever it deems fit among the child’s relatives or other
persons, or else selects an institution designated for this purpose.

Custody is exercised until both the boy and the girl reach the age of legal majority.
Following the termination of his or her parents’ marriage, a child who completes fifteen
years of age has the right to choose either the father or mother as custodian.
A child without parents may choose one of the relatives cited in following Article 171,
provided that his or her interests are not jeopardized and that the legal tutor consents.
In the absence of agreement, the case shall be presented to the judge to settle the
matter according to the interests of the minor.

The custodial salary and expenses shall be covered by the person responsible for the
child’s maintenance, and are separate from the breastfeeding salary and child support.
No custodial salary is due the mother when the marriage relationship still exists, or
during the legal waiting period following a revocable repudiation.

Accommodation expenses for the child shall be fixed separately from child support, the
custodial salary and other custodial expenses.

The father must provide accommodation for his children or pay a sum of money
estimated by the court for the payment of their rent, in accordance with the provisions of
Article 191 below.

Children may not be evicted from their parents’ conjugal home until the father executes
the judgment for their accommodation. The court shall define the measures and
procedures that will guarantee the execution of the judgment by the father concerned.

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Article 169
The father or the legal tutor and the mother custodian must safeguard the child’s
interests, including his or her education and upbringing; however, the ward always
spends the night at the custodian’s house unless the judge decides otherwise.
If the custodian is other than the mother, that custodian must supervise and follow up
daily on the child’s homework.

In the event of disagreement between the legal tutor and the custodian, the case shall
be presented to the court to settle according to the child’s interests.

[Official Arabic source text — English rendering unavailable in this section]
على األب أو النائب الشرعي واألم الحاضنة ،واجب العناية بشؤون المحضون في التأديب والتوجيه الدراسي ،ولكنه ال يبيت إال عند حاضنته ،إال إذا رأى القاضي مصلحة المحضون في غير ذلك. وعلى الحاضن غير األم ،مراقبة المحضون في المتابعة اليومية لواجباته الدراسية. وفي حالة الخالف بين النائب الشرعي والحاضن ،يرفع األمر إلى المحكمة للبت وفق مصلحة المحضون.

The right of custody shall be restored to the person entitled to it when the grounds for its
withdrawal no longer exist. The court may reconsider custody when it is in the interests
of the child.

Chapter II: Of People Entitled to Custody and their Order of Priority

Child custody shall be awarded first to the mother, then to the father, then to the
maternal grandmother of the child. If this proves difficult, the court shall decide, in light of
the evidence before it and in view of what would serve the interests of the child, to award
custody to the most qualified of the child’s relatives, while guaranteeing the child suitable
lodging as one of the custody obligations.

The court may resort to the assistance of a social worker to prepare a report on the
custodian’s home and the extent to which it meets the material and moral needs of the
child.

Chapter III: Conditions for Awarding Custody and Causes for its Withdrawal

Custodian Criteria:
1. Persons other than the parents must have reached the age of legal majority;
2. Moral rectitude and trustworthiness;
3. The ability to raise the child, protect his or her health and ensure his or her moral and
religious upbringing and schooling;
4. Women petitioners for custody may not marry except in the cases provided for in
Articles 174 and 175 below.
Should changes occur in the status of the custodian that are likely to cause harm to the
child, child custody shall be withdrawn and awarded to the next eligible person.

The marriage of a woman custodian other than the mother shall result in her loss of
custody, except in the two following instances:

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. If her husband is in a degree of kinship relations that precludes marriage, or is the
child’s legal representative;
2. If she is the child’s legal representative.

The marriage of the custodial mother shall not result in the loss of her custody of the
child in the following cases:
1. If the child has not attained the age of seven years; or if such a separation may inflict
harm on him or her;
2. If the child suffers from an illness or a handicap which renders his or her custody
difficult for any person other than the mother;
3. If her husband is in a degree of kinship relations precluding marriage, or is the child’s
legal representative;
4. If she is the child’s legal representative.
The marriage of the custodial mother shall exonerate the father from payment of the
child’s accommodation expenses and the custodial salary, and the father shall remain
responsible for payment of child support.

Silence on the part of the person entitled to custody of the child for a period of one year
after she or he has knowledge of the marriage shall result in the forfeiture of his or her
right to custody, except in cases of force majeure.

The father and the mother of the child, as well as his or her relatives and any third party,
shall notify the Public Prosecutor’s Office of any harm endured by the child so that it may
take all necessary measures to safeguard the child’s rights, including withdrawal of
custody.

Child custody is not lost if the custodian or legal tutor moves to another locality within
Morocco, unless it is established for the court that there is cause for its withdrawal,
taking into account the best interests of the child, the particular conditions of the father
or legal representative, as well as the distance separating the child from his or her legal
tutor.

The court may, at the request of the Public Prosecutor’s Office or the child’s legal
representative, include in the custody decree or any subsequent decision an injunction
prohibiting travel by the child outside of Morocco without the prior consent of his or her
legal representative.

The Public Prosecutor’s Office shall notify the competent authorities about the injunction
so that they may take all measures necessary to guarantee the execution of this
decision.

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In the event that permission to travel outside of Morocco with the child is not obtained,
the custodian may petition the judge in charge of expeditious cases to secure such
permission. Permission shall not be granted until the judge has ascertained that such
travel is temporary and that the child will be returned to Morocco.

Chapter IV: Of Child Visitation

The non-custodial parent is entitled to visit and be visited by the child.

The parents may organize such visits by mutual agreement, which is then conveyed to
the court and its terms recorded in the custody decree.

In the event the parents fail to agree, in its custody decree the court shall establish the
visitation times and places with such exactitude as to prevent any attempt intended to
thwart such visits. In its determination, the court shall take into account the conditions of
each party and the specific circumstances pertaining to each case, and its decision may
be open to appeal.

Should any circumstances arise that render the organization of visits, as previously
agreed upon by both parents or as determined by court decree, detrimental to either
person or to the child, the terms of the visits may be revised and amended to take into
account the new circumstances.

The court may take any measures it deems necessary, including the modification of the
visitation terms and withdrawal of custody, in the event of breach of or deception in the
execution of the agreement or the visitation decree.

If either of the child’s parents should die, the parents of the deceased shall be entitled to
visit the child in accordance with the previous child visitation arrangements.

The court shall take into account the interests of the child when applying the provisions
of the present Section.

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 Title Three: Of Financial Maintenance

Chapter I: General Provisions

Each person shall support himself or herself with his or own resources, with the
exception of those persons who have been statutorily exempted.
Financial maintenance for others is due for reasons of marriage, kinship, and
commitment.

No person is required to pay maintenance to any other person unless he first has
sufficient means to support himself, and self-sufficiency is presumed until proven to the
contrary.

Maintenance shall include food, clothing, medical care, and all that is deemed
indispensable, as well as children’s education, taking into consideration the provisions of
preceding Article 168.

A number of elements shall be taken into account to fix maintenance: a pondered
average, the income of the maintenance provider, the status of the maintenance
recipient, the cost of living, as well as the customs and traditions prevailing in the locality
where maintenance is awarded.

In assessing maintenance, the court shall rely on the declarations made by the two
parties and the evidence they present, taking into account the provisions of preceding
Articles 85 and 189, and may resort to expert assistance.
All cases pertaining to maintenance shall be decided within a maximum of one month.

The court shall determine the means by which the maintenance decree and
accommodation costs will be executed from the resources of the person ordered to pay
them, or withheld from his source of income or salary earned, and if necessary any
guarantees to ensure the continuity of maintenance payments.

The decision rendered on the assessment of maintenance shall remain in effect until the
issuance of another decision that replaces it or until the right of the person benefiting
from the maintenance lapses.

No petition for an increase, or alternatively, a decrease in the agreed-upon or legally
fixed maintenance shall be admissible before one year has elapsed, except in
exceptional circumstances.

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Article 193
If the person obligated to pay maintenance is unable to pay it to all persons he is legally
required to support, precedence shall be given to the wife, to younger children, be they
boys or girls, then to daughters, sons, mother, and then to the father.

Chapter II: Of Maintenance Paid to the Wife

[Official Arabic source text — English rendering unavailable in this section]
إذا كان الملزم بالنفقة غير قادر على أدائها لكل من يلزمه القانون باإلنفاق عليه ،تقدم الزوجة ،ثم األوالد الصغار ذكورا أو إناثا ،ثم البنات ،ثم الذكور من أوالده ،ثم األم ،ثم األب. الباب الثاني :نفقة الزوجة

The husband shall be obligated to pay maintenance to his wife the moment their
marriage is consummated, as well as if she has bidden her husband to consummate
their marriage once it has been duly concluded.

Maintenance for the wife shall be awarded by judicial decision starting from the date the
husband has ceased to pay the maintenance expenses incumbent upon him, and the
wife does not lose her right to maintenance unless she has been ordered to return to the
conjugal home and has refused.

A wife who has been revocably repudiated shall lose her right to accommodation but not
to maintenance if she leaves the home where she is required to observe the legal
waiting period without the consent of her husband or without a good reason.
A wife who is pregnant and has been irrevocably repudiated shall be entitled to
maintenance until the delivery and if she is not pregnant she is entitled to
accommodation only until her legal waiting period has ended.

Chapter III: Of Maintenance Paid to Close Relatives

Among close relatives, maintenance is an obligation of children towards their two
parents, and of the two parents towards their children, according to the dispositions of
this Moudawana.

Section 1: Of Maintenance Paid to Children

Maintenance paid by the father to his children shall continue until they come of legal
age, or until those who have pursued their education reach the age of twenty-five.
In any case, maintenance paid to the daughter shall not cease until she can earn a living
on her own or until her maintenance becomes incumbent upon her husband.
The father shall continue to pay maintenance to children suffering from a handicap and
unable to earn a living.

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Article 199
In the event the father becomes wholly or partly unable to pay maintenance to his
children, and the mother is affluent, the latter shall become responsible for their
maintenance in proportion to the amount the father is unable to pay.

[Official Arabic source text — English rendering unavailable in this section]
إذا عجز األب كليا أو جزئيا عن اإلنفاق على أوالده ،وكانت األم موسرة ،وجبت عليها النفقة بمقدار ما عجز عنه األب.

An injunction to pay maintenance to children shall be issued starting from the day such
payment has ceased.

The salary due for the breastfeeding of the child shall be incumbent upon the person to
whom the maintenance of the child devolves.

Whoever is responsible for child maintenance but fails to pay it without good reason for
a period exceeding one month shall become liable under the provisions governing family
neglect.

Section 2: Of Maintenance Paid to Parents

Maintenance due to parents is shared by their children according to their affluence and
not according to their inheritance shares.

The injunction ordering maintenance for parents shall start from the date the request
was filed.

Chapter IV: Of the Commitment to Pay Maintenance

Whoever commits to paying maintenance to another person, be he young or old, for a
limited period of time shall become liable for his commitment, and if the maintenance is
for an undetermined period the court shall, in determining the period in question, refer to
customary practice.

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 BOOK FOUR: OF LEGAL CAPACITY AND REPRESENTATION

Title One: Of Legal Capacity, Causes of Guardianship due to Legal Incapacity
(Al-Hajr), and Acts of Disposal

Chapter I: Of Legal Capacity