QUICK ESCAPE FROM SITE

Family law and marriage laws

  • Legislation on marriage should protect women’s rights and guarantee equality. At a minimum, family and marriage laws should guarantee equal rights and responsibilities between women and men in marriage, divorce and dissolution; ensure that all marriages involve the free and full consent of both parties; establish a registration system for all marriages and births; provide for a marital property system that protects women’s right to equality; protect the rights of widows and girls to inherit; prohibit polygamous marriages, and; guarantee both parents equal rights and responsibilities with regard to children during marriage, divorce, dissolution, as well as with regard to children born outside of marriage. Drafters should ensure any constitutional protections against discrimination in marriage are codified in statutory law to ensure effective protection of women and girls.
  • As specified in the CEDAW Committee’s General Comment No. 29 (2013), “In the absence of a unified family law, the system of personal status laws should provide for individual choice as to the application of religious law, ethnic custom or civil law at any stage of the relationship. Personal laws should embody the fundamental principle of equality between women and men, and should be fully harmonized with the provisions of the Convention so as to eliminate all discrimination against women in all matters relating to marriage and family relations.” Para. 15. Watch a video about the impact of discriminatory marriage laws in Bangladesh.

CASE STUDY: Legislation should ensure that constitutional protections are implemented by and promoted in civil laws. Uganda’s Constitution (1995) provides constitutional guarantees to protect the rights of women in marriage. Importantly, it establishes the minimum age for marriage at 18 years, guarantees equal rights to both parties at, during and upon dissolution of the marriage, and it specifically requires Parliament to legislate protections for widows and widowers in inheritance and the parental rights of their children:

“1) Men and women of the age of eighteen years and above, have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution.

(2) Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over their children.

(3) Marriage shall be entered into with the free consent of the man and woman intending to marry.

(4) It is the right and duty of parents to care for and bring up their children.

(5) Children may not be separated from their families or the persons entitled to bring them up against the will of their families or of those persons, except in accordance with the law. Affirmative action in favour of marginilised groups” (Art. 32)

Legislation, including amendments to the Succession Act and enactment of the Marriage Bill, to ensure that inheritance laws comply with the Constitution remains pending.

  • Drafters should ensure that these protections extend to consensual and non-formal unions and customary marriages. Drafters should pass laws subjecting consensual, religious and customary unions to the same laws governing civil unions. For example,South Africa’s 1998 Recognition of Customary Marriages Act guarantees the same legal rights to women in customary marriages or civil marriages if they are registered.

Promising Practice: When faced with legal pluralism on marriage, legislation should uphold the legal system that best advances women’s human rights and prevents discrimination. In Bhewa v. Government of Mauritius, Mauritius Supreme Court 1990, a Muslim couple challenged the right of the state to require civil marriage and its accompanying rights. Their claim was based on the fact that Mauritius has both civil and customary legal systems. The couple also challenged the government requirements on the basis that laws are unconstitutional under the Constitution that provides freedom of religion and freedom from discrimination on the basis of religion. The court found in favor of the state holding that the two systems, the civil laws and the “personal laws” co-exist but in their own respective spheres. When religion dictates certain requirements on marriage and tries to have those requirements have the force of law, it impermissibly steps out of its sphere. In this case, the Muslim couple’s desire to apply certain Muslim laws addressing marriage, divorce and devolution of property and permitting polygamy is not guaranteed by the constitution, because these practices violate civil laws for protection of the common good and prevention of discrimination against women. The appeal by the petitioners was dismissed.

Next Topic   Marriages