The Court of Cassation accepts the case for proof of marriage despite the expiration of the statutory grace period

In an exciting jurisprudence, the Court of Cassation recently issued a decision to accept the marriage establishment case despite the end of the legally defined transitional period for hearing such cases, based on the jurisprudence of the Maliki jurisprudence.

The marriage authentication case relates to couples who do not document their marriage contracts for some reason, but rely on the reading of Al-Fatihah and witnesses, and resort to filing a marriage confirmation lawsuit after having children, to document the contract. matrimonial.

Despite the fact that the term to hear cases of matrimonial evidence expired after its extension for years in the Family Code, the court justified its decision that “the purpose of the extension for several times is to preserve the honor of the woman and the lineage of the children, and this is what the law seeks to protect.”

The case dates back to August last year, when a man and a woman appeared before the Family Justice Department in Marrakech, claiming that they were married to al-Fatiha with a dowry and had held a wedding ceremony in the presence from their families in January 2007, and that they wanted to correct the situation by documenting the contract by ruling that their marriage was established from 2007 to now.

The couple attributed the lack of documentation of the contract to circumstances of force majeure beyond their control, and that they had three children, the first born in 2008, the second in 2010 and the third in 2014, seeking a sentence to establish the marriage between them. .

The aforementioned request was answered by the Court of First Instance of Tibet, which accepted the request, since the latter was based on “the rules of Maliki’s jurisprudence to which it refers in the absence of a legal text”.

The Public Ministry in the same court, appealed the sentence of first instance for violation of the Family Code, which set the transitory term to hear a marriage test in 15 years from the date of its dictation, a term that ended in February 2019, “which means that the case is filed outside the legal deadline”, according to the Public Ministry.

Last March, the Marrakech Court of Appeal decided to revoke the judgment of first instance and the judgment that did not admit the hearing of the matrimonial lawsuit due to the expiration of the legal term.

However, the Court of Cassation rejected the appeal ruling, highlighting that “despite the end of the transitory period indicated by the legislator to hear the cause of proof of marriage, and without a text that specifies the date of knowledge of the cause marriage, is due to Maliki jurisprudence in accordance with the requirements of the Family Code”.

The aforementioned requirements are related to article 400 of the Family Code, which states that “everything not mentioned in this code refers to the Maliki school of thought and ijtihad, which takes into account the realization of the values ​​of Islam in justice, equality and good coexistence”.