Morocco Court Acquits Unmarried Couple, Challenging Adultery Laws

"The absence of a marriage certificate does not constitute a reason to consider a sexual relationship as illegal." With this decision, the Zagora court believes that a sexual relationship consumed within the framework of a "marriage without a certificate" would not be illegal. As one might expect, this decision rendered on February 15 last, generates divergent opinions. While some think it encourages and facilitates debauchery, others see it as a precedent that could facilitate the repeal of Article 490 of the Moroccan Penal Code.

This case concerns a woman and a man prosecuted for adultery, following a complaint filed by the "offended spouse", who also accuses her husband of violence and expulsion from the marital home. The man confides that he "married the second woman by the Fatiha without a polygamy procedure", nor that of divorce. As for the woman married in second marriage, she specifies that the marriage was concluded by exchange of consent but without "establishing the certificate", and that the engagement took place in the presence of her family, reports Medias24.

On the facts of adultery, the court invokes three elements to support its interpretation: the defendants "live under the same roof". The defendant considers herself the "legitimate wife" of the defendant, and the engagement took place in the presence of members of her family. For the judge, there is no need to mention adultery with all these elements combined. It is only on the complaint for domestic violence and expulsion from the marital home that the Zagora court decided to sentence the husband to 2 months in prison followed by a fine of 2,000 DH and 10,000 DH to compensate the damage suffered by his first wife.

The acquittal of the couple for acts of adultery is contrary to the decision rendered by the Court of Cassation in 2017. It had considered that a relationship between a man and a woman derives the "basis" of its "legality" from a "marriage certificate or what replaces it in accordance with the family code". So, according to the Court, "the presence of children or the duration of cohabitation, without establishing this basis, subjects this relationship" to the penalties provided for in Article 490 of the Penal Code (sexual relations outside of marriage).

In Morocco, the written act is the only way to prove a marital bond according to Article 16 of the Family Code. According to the Ministry of Justice, some spouses resort to the "Fatiha" to circumvent judicial procedures and the obligations arising therefrom, especially in matters of polygamy or divorce. It is also a way for some families to keep underage marriages off the radar of the Justice system, the same source specifies.