Maghreb: New Discussion Booklet on the Marriage Contract

Article 12: Divorce*

Option 1: Commitment by husband not to repudiate his wife

The husband hereby undertakes not to resort to the repudiation procedure provided for (in Morocco, by articles 78 and subsequent of the Family Code, in Algeria by articles 48 and subsequent of the Family Code).
Should despite this clause the husband resort to the repudiation procedure and the repudiation is authorized by the competent authority, the husband will immediately give his wife (insert the form – cash, in kind, transfer of property – as well as the method for fixing the amount or value) solely as a penalty for violation of this contractual obligation. This penalty is separate and in addition to any damages due for harm caused and the Consolation Gift, these two legal indemnities paid to the wife provided for by the law and their amounts fixed by the competent authorities.

Option 2: Delegation of the husband’s right of repudiation to the wife (tamleeq)

The husband hereby delegates his right of repudiation to his wife (tamleeq) as provided for by (insert the relevant articles of the Family Code, Muslim law), who may exercise this right unconditionally and without prejudice to the other personal or material rights to which she is entitled according to the law or this contract.

Option 3: Conditions for a compensatory divorce by the wife (khula)

In accordance with (articles 115 and subsequent of the Moroccan Family Code, article 54 of the Algerian Family Code), the two spouses hereby agree that the wife may obtain a compensatory divorce without the husband’s authorization in exchange for which the husband will receive (insert the form – cash, in kind, transfer of property – as well as the method for fixing the amount or value), and this without prejudice to the other personal or material rights to which the wife is entitled according to the law or this contract.

* As is the case for polygamy, this clause may be useful not only in cases where repudiation is still legal such as in Morocco and Algeria, but in mixed marriages where the husband comes from a country where repudiation is legal, as well as in cases where a couple from a country where repudiation is forbidden relocates to a country where it is permitted. In an egalitarian approach to family matters, there is no reason for repudiation, whether by the husband or by the wife by tamleeq or by khula, given the other existing legal options provided for divorce to spouses (mutual consent, irreconcilable differences, or for fault, which includes non respect of contractual obligations). We have nonetheless included the former options above given that the law provides for them and in order to inform and present all possible options to the concerned parties.