Free and Full Consent in Entering a Marriage
- Legislation on marriage should require the free and full consent of both parties. To ensure that consent is freely and fully given, laws should provide the mechanisms necessary to determine valid consent. For example, laws should require the physical presence of both parties and witnesses as a means of establishing consent. Drafters should require consent to be expressed in person by the parties and in the presence of an authority competent to formalize the marriage and in the presence of witnesses. To combat nonconsensual marriages, drafters should not confer legal recognition to marriages by proxy, but instead require the presence of both parties plus witnesses at the legal proceeding for the marriage. Laws should authorize a registrar to interview both parties prior to the marriage where there are doubts about free and full consent. For example, Norway provides a mechanism allowing an official to interview both parties to ensure they have consented to the marriage. (See: Forced and Child Marriage)
Enhancing penalties for those who force or coerce women into marriage is an important step in ensuring the right to free and full consent to marry.
Amendments to the penal code of Kyrgyzstan that will go into effect in February 2013 have increased the penalties for “bride kidnapping” (where women are taken against their will for the purposes of marriage), which is generally recognized to be widespread throughout the nation. Authorities and activists see the new legislation of a sign of the nation’s movement towards abolishment of the practice. See Kyrgyzstan penal code
(pre-amendment form) and “New law in Kyrgyzstan”.
Abolition of Bride Price
- Legislation should prohibit the practice of bride price, a custom in which payments or goods, such as livestock from the groom’s family are made to the bride’s family in exchange for the bride. Alternatively, drafters should consider reforming bride price practices so that bride price payment is considered a non-refundable gift. Legislation should state that bride price is not a condition for solemnization of a customary or other marriage. CEDAW, Gen. Rec. No. 29, para. 33. Where a bride price has been paid, legislation should prohibit the deceased’s family from demanding the bride price back from the widow in return for the marital land and property.
CASE STUDY: Attempts to Abolish Bride Price in Uganda
Bride price is used to validate customary marriages and is very common in many African countries. Typically, bride price consists of an exchange between families where material items (often cattle or other animals) or money are paid by the groom to the bride’s family. While bride price is a long-standing customary practice, traditionally it was not seen as a payment to buy a wife, but was considered a gift of goods to seal an alliance between families. Colonial policies altered the symbolic nature of the exchange in many countries and with the introduction of a cash economy, the amounts of cash expected increased and bride price became a means of commodification of women that can contribute to violence in family relationships. Bride price violates the marital equality provisions in the Ugandan Constitution and was also identified as one of the key factors undermining women’s empowerment in Uganda in a 2005 government report.
A Ugandan organization, MIFUMI, has been working to abolish bride price using multiple strategies. Uganda has a strong tradition of local by-laws, which are passed by local district councils. After a campaign by MIFUMI, the Tororo District Council in Uganda passed the Bridal Gift Ordinance in 2008, stating that any bride price becomes a non-refundable bridal gift. However, the impact of this ordinance on bride price practices has not been evaluated. Despite these developments at the local level, a 2010 legal petition that attempted to outlaw the practice nationally was unsuccessful and explicit recognition for bride-price was included in the proposed 2012 Marriage Act. The challenges MIFUMI has confronted in developing national support for bride price abolition highlight the challenges in ending deeply rooted customary practices.
See: Tororo District Passes the Ordinance Bill 2008 on Bride Price, MIFUMI Newsletter, Oct. 10, 2010; Thiara, Ravi K. and Gill Hague, Bride Price, Poverty, and Domestic Violence in Uganda, MIFUMI, 2010; Muthegheki, S., et al., An Exploratory Study of Bride Price and Domestic Violence in Bundibugyo District, Uganda, Centre for Human Rights Advancement, 2012; Destructive Bride Price (GTZ, 2004).
Premarital, post-nuptial and other forms of marriage contract
- Laws should specify that in systems under which contractual agreements in relation to the distribution of marital property are allowed, women are not left with less protection than they would have under the standard or default marriage provisions, owing to grave inequality in bargaining power.
- Laws that provide for the possibility of making private contractual arrangements with respect to the distribution of marital and other property following the dissolution of marriage should include measures to guarantee non-discrimination, respect public order, and prevent abuse of unequal bargaining power and protect each spouse from abuse of power in making such contracts. These protective measures may include requiring that such agreements be written or subject to some other formal requirements and providing for retroactive invalidation or for financial or other remedies if the contract is found to be abusive. CEDAW, Gen. Rec. No. 29.
Annulment of a Forced Marriage and Divorce
- Drafters should ensure that laws reflect a no-fault divorce regime. Fault-based divorce regimes may condition financial rights on lack of fault. They may be abused by husbands to eliminate any financial obligation towards their wives. In many legal systems, no financial support is awarded to wives against whom a fault-based divorce has been pronounced. Fault-based divorce regimes may include different standards of fault for wives and husbands, such as requiring proof of greater infidelity by a husband than by a wife as a basis for divorce. Fault-based economic frameworks frequently work to the detriment of the wife, who is usually the financially dependent spouse. CEDAW, Gen. Rec. No. 29, para. 39. This includes:
- Revising any provisions linking grounds for divorce and financial consequences to eliminate opportunities for husbands to abuse these provisions to avoid any financial obligations towards their wives;
- Revising any provisions relating to fault-based divorce to provide compensation for the contributions made by the wife to family economic well-being during the marriage;
- Eliminating different standards of fault for wives than for husbands, such as requiring proof of greater infidelity by a husband than by a wife as a basis for divorce.
- Eliminating any procedural requirement of payments to obtain a divorce that does not apply equally to husbands and wives.
- Separating the principles and procedure dissolving the marriage relationship from those relating to the economic aspects of the dissolution.
CEDAW, Gen. Rec. No. 29, para. 40.
- Drafters should consider the legal options for the survivor/complainant to end a levirate, sororate or other forced marriage. Laws should guarantee to women the same rights and responsibilities at the dissolution of a marriage as men. Laws regarding annulment of a marriage should safeguard both parties’ rights to property and guarantee them information regarding the proceedings. Any options for ending a marriage should protect her rights, including those related to property, child custody, immigration status and support.
- Laws may annul a marriage as void or voidable. Voiding a marriage does not require a formal decree and will render the marriage as though it never existed. Statutes generally void a marriage under certain fundamental conditions, for example, an absence of voluntary consent, a party is already married, a party is not of legal age, or the parties are related within a certain number of degrees. Drafters should carefully evaluate the context and survivors involved when determining whether to annul forced marriages as void or voidable.
- Drafters should be aware of civil laws that may negatively impact the status of children or property rights when a marriage is automatically voided. The Newham Asian Women’s Project noted that children borne of voided marriages will be regarded as illegitimate in the UK unless both parties held a reasonable belief that the marriage was legitimate and the husband’s residence is in England or Wales. In contrast, a voidable marriage requires a formal court decree for termination. If a marriage is voided and automatically renders the child’s status as illegitimate, that may negatively impact not only the children but also the widow’s right to her natal property, as her family may perceive its subsequent devolution to the child as leaving the family line.
- Laws should not impose time restrictions upon when a party may seek to annul a marriage, but may instead increase the presumption of the marriage’s validity with time.
- Drafters should eliminate any compulsory waiting periods for divorce aimed at facilitating reconciliation between parties in a forced marriage. Laws should not grant legal recognition to religious traditions that deny women due process in divorce proceedings. Divorce should only be recognized through formal legal mechanisms. For example, by saying “talaq” or “I divorce you” three times, a man can divorce his wife under Sunni Muslim tradition. Women who have been so divorced lose their home and financial support. Laws should not only prohibit this practice but also establish a legal process and legal aid resources for women to assert claims for marital support, child custody and property claims against husbands who have left them in this manner.
(See: Forced and Child Marriage)
- Legislation should prohibit polygamous marriage, which discriminates against women and has severe impacts on additional wives. CEDAW, Gen. Rec. 29. For example, the death of the husband can diminish what security of tenure the additional wives may have, particularly when their inheritance is denied or fragmented. Women in polygamous marriages face difficulties, particularly where polygamy is prohibited or laws restrict registration to only one wife. These situations result in unofficial—and therefore unrecognized—marriages for the additional wives that are outside the reach of marriage laws. Both the Human Rights Committee and the Committee on the Elimination of Discrimination against Women have found that polygamous marriages discriminate against women and recommend their prohibition. Permitting the practice of polygamy violates Article 3 of the ICCPR (equal rights of women and men). Article 5(a) of CEDAW, which requires States Parties to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” Furthermore, a polygamous marriage violates a woman’s right to equality in marriage and has severe financial effects on her and her children. CEDAW, Gen. Rec. 21, Para. 14. In these cases, additional wives lack the legal standing to assert their claims to property because their marital status lacks formal recognition or is even prohibited. Upon their husband’s death, these additional wives are excluded from property entitlement.
- The CEDAW Committee’s General Recommendation 29 reaffirms the goal of abolishing polygamy and makes clear that “, with regard to women in existing polygamous marriages, States parties should take the necessary measures to ensure the protection of their economic rights.” Legislation should address the inheritance and property rights of women who are currently in polygamous marriages. For example, laws should state that each surviving widow is entitled to a life interest in the marital home in which they lived with the deceased. In cases of intestacy, widows should each receive a preferential share of the estate, with different amounts depending on the length of the marriage and the number of minor children.
Registration of Marriages
- Drafters should ensure that laws require the registration of births, deaths and marriages as a means of tracking marriages and parties’ ages. Drafters should ensure that registration is required for all marriages, including both civil and customary unions. CEDAW, Gen. Rec. 29. Data gathered through registration systems should be used to monitor and facilitate enforcement of the minimum marriage age standard, as well as compile statistics on marriages. Laws must take into account illiteracy rates that may prevent parties from registering their marriages. Drafters should provide for oral registration and an alternative signature, such as a fingerprint, and fund and train local civil society to provide free assistance in customary marriage registration.
Sierra Leone’s Registration of Customary Marriages and Divorce Act (2007) requires the registration of customary marriages. Either or both parties must notify the local council in writing within six months of the marriage. The registration must state the names of the parties, place of domicile, and that the conditions necessary for the customary marriage have been met. Any person who objects to the validity of the marriage under customary law may file an objection in the court. This latter is an important mechanism for civil society to monitor compliance with the law. The law prohibits marriages of children under 18 years of age unless their parents/guardians have consented. The law prohibits additional marriages under customary law when a Muslim, Christian or civil marriage already exists and vice versa. (See: Forced and Child Marriage)
Kenya’s Constitution (2010) requires that the state pass legislation that “recognises— (a) marriages concluded under any tradition, or system of religious, personal or family law; and (b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution.” (Art. 45(4))
CASE STUDY: Inheritance laws that provide for additional wives do provide added protection for these women, but do not eradicate the inherent problems polygamous marriages pose. Wives are often forced to divide an already small inheritance portion. Also, additional wives may still be cut out of a fair share of inheritance to the first wife or the first wife’s children. While drafters should enact legislation to ensure all wives can inherit from the deceased spouse’s estate, they should also take steps to prohibit polygamous marriages going forward.
For example, Zimbabwe recognizes inheritance rights for additional wives, but leaves the wives to divide this portion amongst themselves. The Administration of Estates Act Administration of Estates Act provides that each wife is granted the home she lived in at the time of her husband’s death, and shares a third of the remaining property, with the senior wife getting the largest share.
In Scholastica Benedict v. Martin Benedict (Court of Appeal of Tanzania, 1993), the decision by the Court of Appeal of Tanzania was the culmination of seventeen years of litigation between two widows over the right to the house and property of their deceased husband. This case is an example of the harmful effects of polygamous marriages on discriminatory laws. The second (junior) wife, who had one daughter by the deceased, had appealed the decision of the lower court upholding the application of customary law in favor of the inheritance rights of a male heir, who was the eldest son of nine children by the first (senior) wife, over the second wife’s matrimonial rights to reside with her unmarried daughter in the home in which they had lived with the deceased for over fifteen years. The Court held that any marital right the second wife had to reside in the house in which she had lived with the deceased was contingent on whether her daughter had a right to the property that was superior to the male heir’s right. Since the male heir’s right took precedence, even though he, the first wife, and eight other children resided in another house, the lower court decision and order evicting the second wife and her daughter from the home was upheld.