Under Moroccan family law, known as Family Code (Law No. 70.03)The concept of "consolation gift" (Mout'âF) constitutes one of the fundamental financial rights granted to women after divorce, as compensation for the harm suffered as a result of the breakdown of the marital relationship.
Key takeaways
The gift of consolation is not simply material compensation, but rather reparation for the material, psychological, and moral harm that the woman may suffer. divorcee following the separation. Article 84 of the Family Code stipulates that the consolation gift is part of the "rights due to the wife", alongside the remainder of the dowry (Sadaq), if applicable, and the widow's pension (Nafaqat Al-Idda).
The court has broad discretionary power to determine the amount of the consolation gift. However, this power is limited by criteria specifically listed in Article 84, namely:
The Court of Cassation reaffirmed the necessity of adhering exclusively to these criteria in its judgment no. 56 of February 1, 2022. In this case, the Court overturned an appeals court ruling that had increased the amount of the consolation gift based on the fact that the wife was a minor and lived in an urban area. The Court of Cassation held that these factors were not among the legal criteria for assessing the consolation gift and that the appeals court had failed to demonstrate the husband's actual income or the nature of his abuse in the divorce proceedings, thus rendering its decision insufficiently reasoned.
One of the most important points settled by case law concerns the right to a consolation gift in the case of a divorce for discord initiated by the wife. The Court of Cassation has established a consistent principle according to which "a woman is not entitled to a consolation gift in any separation she has chosen." This principle is based on Article 97 of the Family Code, which links the granting of compensation to each party's responsibility in the cause of the separation.
To clarify, here is a summary table of the different scenarios:
Situation / Who is filing for divorce? | Wife's right to Mut'ah | Possible compensation / Legal basis |
The husband initiates the divorce | YES (Systematic law) | The amount of the Mut'ah is fixed according to the 4 criteria of article 84. |
The wife requests a divorce due to discord (Chiqqaq) | NON | She can claim compensation for damages if the husband's liability is proven (Art. 97). The husband can also claim compensation if the wife is found liable. |
Shared responsibility in divorce due to discord | NON | The judge assesses the share of responsibility of each party and can distribute compensation accordingly (Art. 97). |
This principle has been clearly illustrated in several recent decisions:
These rulings confirm that:
To form its opinion on the spouse's financial situation and the reasons for the divorce, the court relies on all available means of evidence, including:
En conclusion, il ressort que le don de consolation dans le Code de la famille marocain est un droit lié au préjudice subi par la femme du fait d’un divorce initié par le mari. En revanche, lorsque l’épouse prend l’initiative de rompre la relation conjugale, son droit au don de consolation est écarté. Cette position, consacrée par la jurisprudence de la Cour de cassation, garantit une application de la loi qui maintient un équilibre entre les droits et les devoirs des deux parties.
A consolation gift is a sum of money awarded by a judge to a divorced woman. It aims to compensate her for the material and psychological harm she suffers as a result of the husband's dissolution of the marriage. It falls under the financial rights of a divorced wife as stipulated in Article 84 of the Family Code.
No. The fundamental rule is that the gift of consolation is due in the event of a divorce or repudiation initiated at the husband's request. If it is the wife who requests the dissolution of the marital relationship, she is not entitled to it.
According to the established case law of the Court of Cassation, the wife who requests the divorce due to discord is not a right to the gift of consolation, since it was she who "chose the separation." The Court confirmed this principle in several rulings, including ruling no. 284 of May 17, 2022, and ruling no. 135 of March 1, 2022. Instead of the gift of consolation, the wife can claim compensation if she proves that the husband is the cause of the discord and that she has suffered harm as a result, in accordance with Article 97 of the Family Code.
The court has discretionary power to set the amount, but it is required to base its decision exclusively on four essential criteria set out in Article 84 of the Family Code:
No. The criteria in Article 84 do not include the wife's financial situation. In its judgment No. 56 of February 1, 2022, the Court of Cassation clarified that considering the wife as "a minor" or "living in an urban area" does not fall within the legal criteria for assessing the consolation gift, thus emphasizing the need to adhere strictly to elements relating to the husband, the duration of the marriage, and the grounds for divorce.
The parties may use all available means of evidence to support their claims, whether concerning the financial situation or the grounds for divorce. These means include:
Yes. As part of a divorce proceedings due to discord If the separation is initiated by the wife, and the husband proves that she is the cause of the separation and that he has suffered harm as a result, he can claim financial compensation from her. This is based on the principle of "taking into account the responsibility of each spouse in the cause of the separation," as stipulated in Article 97.
