Last updated May 2010
Family law and divorce
Promising Practice: Global Rights has worked with women in the Maghreb region to use the marriage contract to negotiate and protect their rights in marriage and at its dissolution. The project sought to empower women to demand a written marriage contract that incorporates protections of their rights, use these contracts as a litigation tool in the court system, promote the use and validation of marriage contracts, provide advocates with a model contract to lobby for the adoption of a government-mandated standard marriage contract to protect women’s human rights. A report highlighted some of key clauses on property that should be included in a marriage contract, including:
See: Conditions, Not Conflict: Promoting Women’s Human Rights in the Maghreb through Strategic Use of the Marriage Contract, Global Rights, 2008.
CASE STUDY: Legislation should always ensure that women are guaranteed equal rights in dissolution of marriage. Conflicting legislation should be resolved in favor of advancing women’s human rights. Pakistan’s 1964 Family Courts Act and 1939 Dissolution of Muslim Marriages Act impose different requirements on a woman seeking a divorce. Under the 1939 Dissolution of Muslim Marriages Act, a woman may file for divorce based on nine grounds, such as cruelty. If none of the nine grounds are present, a woman may still file for divorce under the Family Court Act. In this case, however, she is required to return any dower—or gifts to her from her husband—to her husband. In cases where that gift has been sold, used, or transferred, she will be unable to obtain a divorce under this act. The same requirement to return dowry as a condition for divorce, however, does not apply to the husband under the Family Court Act.
Promising Practice: The Lawyer’s Collective Women’s Rights Initiative cites to the Goa system governing matrimonial property as a potentially good strategy for protecting women’s property rights upon divorce. Using the communion of acquired properties model, both parties register their separate properties, including the property owned by each spouse at that time or property gained through succession, gifts or a preexisting exclusive right, at the time of marriage. Such property belongs to the person as registered. Unregistered, separate property at the time of marriage, and all property acquired during the marriage, becomes community property, is jointly owned by both parties and is divided equally in the event of divorce. See: Jhuma Sen, Whose Property Is It Anyway? Property Rights of Married Women in India, The Magazine, Lawyer’s Collective, November 2009.
See: UN Handbook, 3.13.
The Children’s Law Act (1990) of Newfoundland, Canada states:
(3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards (a)his or her spouse or child; (b)his or her child's parent; or (c)another member of the household…Article 31
See: Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother (2005).
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