انحلال الرابطة الزوجية في القانون الدولي الخاص المغربي

الملخص EN

This research paper deals with the issue of the dissolution of the marital bond in the Moroccan private international law, we have adopted to approach this topic on a bilateral methodology.

In the first part, we discussed the conditions of the divorce in private international law, which are divided into substantive and other formal conditions.

We concluded that the divorce is done in Moroccan private international law, in which the national law of parties as it is stipulated in the chapter 9 of the Dahir (Royal law in Morocco) August 12 of 1913, related to the civil status of French and foreigners, which reiterates that: “French and foreigners have the right to submit for the divorce and the physical separation according to the conditions that are designated by their national law”, so the importance is accorded in this context to their national law of those people which is submitted to for the completion of the divorce based on the conditions and the elements, therefore for Moroccans is the Mudawana (the personal status code, also known as the family code in Moroccan law), when we talked about the difference of the legislations regulating this point in the matter of discussing the conditions of divorce.

Some legislations take the physical insult as a reason for divorce although nowadays the most common practice is the consensual divorce especially in France, and that assumption is expressed by many European and French Judicial rulings, and some legislations have adopted the theory based on the harm inflicted on one of the spouses to sign the divorce, as for the formal conditions required in the divorce, there is a consensus in terms of the necessity of signing it under judicial supervision and to be testified before two Adouls in relation to the Islamis legislation including Moroccan one.

As for the second part of this research paper, we dealt with the effects of divorce and physical separation as we talked about the content of this idea, and concluded that these effects may be attributed to two essential situations: the first one is the personal relationship between the two divorced or physically separated, and then the relationship of the two divorced with their children.

We have exposed the judicial practice in Morocco and France and other countries.

Furthermore, we have dealt with the issue of the validity of the effects of divorce and the problem of the applicable law.

We have observed the silence of the Moroccan legislator, like other legislations, to specify the applicable law in divorce and its effects.

However, what is legally established is to refer to the national law of the spouses, if these spouses have the same nationality, their common law is applied, but if the nationality of the spouse is different, then each respective law is given its share in the application despite that is hurdled by many difficulties, but the arbitrator in this is the aithority granted to the judge to value every case.