Rabat - An unprecedented first for the Moroccan judiciary system: Tangier’s trial court issued on January 30,2017 its first adjudication approving the principle of the right of a child born out of wedlock affiliation to her biological father and the right of the mother to compensation for physical and emotional trauma suffered as a result of the relationship.
Rabat – An unprecedented first for the Moroccan judiciary system: Tangier’s trial court issued on January 30,2017 its first adjudication approving the principle of the right of a child born out of wedlock affiliation to her biological father and the right of the mother to compensation for physical and emotional trauma suffered as a result of the relationship.
In late 2016, a Moroccan woman filed a suit against the man with whom she had a child out of wedlock, accusing him of abandoning their daughter and refusing to acknowledge paternity despite definitive DNA proof. The woman requested the court to recognize her daughter’s affiliation to her biological father and to force the later to assume his parental responsibility by providing financial support to the child.
The defendant replied by stating that the prosecution’s case is legally unfounded, since the relationship between the two individuals is considered “illegitimate” in the eyes of the Moroccan judiciary system. While the DNA tests do in fact prove the biological paternity of the father, the Moroccan family code does not recognize the legitimacy of children conceived out of wedlock.
The defendant went on to only present a court order issued against him for “debauchery” (having a sexual relationship outside the institution of marriage), in accordance with to Chapter 490 of the Criminal Code, seeking from the court to reject the prosecutor’s case.
The defendant based his argument on the Article 148 of the family code, which states that “illegitimate filiation does not produce any of the effects of legitimate parentage in relation to the father.” However, the same document states in Article 146 that “filiation, whether it results from a legitimate or illegitimate relationship, is the same in relation to the mother, as regards the effects which it produces.”
However, in what can only be considered as a first in a Morocco, the judge decided to disregard the Moroccan family code decrees and focus instead on the Moroccan Constitutions and the Children’s rights international conventions signed by Morocco.
These conventions signed by the Kingdom back in 2014 and 1993, recognize the child’s right to parentage, whether conceived out of or in wedlock. Article II of the Convention on Children’s rights ratified by Morocco on in July 1993 stress that the court must give primary and utmost consideration to the best interests of the child when considering the disputes concerning them.
Article 7 of the same agreement also stipulates that the child shall be registered immediately after birth and shall have the absolute right to know his parents and be cared for.
Moreover, the judge based his adjudication on Article 32 of the Constitution, which is the highest legal text in Morocco, which establishes the principle that “the State will insure equal legal protection, and equal social and moral consideration for all children regardless of their familial status.”
As the Constitution is unarguable, the judge’s decision to recognize the biological paternity of the father is a victory for the child, the mother, and the 153 illegitimate children born in Morocco every day, according to the statistics of the Institution Nationale de Solidarité avec les Femmes en détresse (INSAF).
However, while the court recognized the child’s paternity, it did not recognize her right to her father’s lineage, meaning her legal “legitimacy”.
The prosecution’s second request to secure the child’s right to an alimony was rejected by the court, as the right to a pension is only given to “legitimate” children, conceived by married parents.
However, the prosecution got around this rejection by finding a legal loophole: tort liability.
Tort liability is a legal violation resulting from intentional actions, a breach of duty as in negligence, or a violation of statutes. The party that commits the violation, called the tortfeasor incurs tort liability, meaning that they will have to compensate the victim for the harm that they caused them.
Tort liability is referred to in to the Article 77 of the obligations and contracts Dahir, the King’s direct decree, “Any act of a man who, without the authority of the law, knowingly and intentionally caused material or moral damage to another, is obliged to compensate for it.”
The “illegal” relationship between the defendant and prosecutor is considered a “crime” for which the father will be convicted. The judge concluded that the fact that this child was the result of this “crime” is regarded as prejudice according the 3rd article of the 1984 Dahir, and that the father is absolutely responsible for it.
Thus, the court, after establishing the affiliation of the child to her father and his responsibility to provide for her financial and immaterial needs, sentenced the father to pay MAD 100,000 in compensation to the mother.
In a historic first for a case of an “illegal” child, justice have finally been served.