Family and Divorce Law

Last updated May 2010

Family law and divorce

  • Legislation should guarantee women and men equal rights to enter into marriage; equal rights to choose a spouse and enter into marriage only with the free and full consent of both parties, and; equal rights and responsibilities during marriage and at its dissolution. See: Forced and Child Marriage.

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:

  • Requiring registration of all assets acquired during marriage in both parties’ names;
  • Guarantee the woman’s right to freely manage and dispose of her own property, which includes her salary, inheritance, jewelry, gold, dower, stridhan, and all other property she brings with her to the marriage and household;
  • Include a documented list of the woman’s personal property;
  • Providing for equal distribution of these joint assets in the event of divorce, based on the percent of each party’s contribution (which includes women’s unpaid domestic work);
  • Provide the right to remain in the family home to the woman and the children upon dissolution of the marriage, including divorce and death of the husband. Where the home is rented and the woman has no fixed income, the husband should pay this rent;
  • Provide a fixed amount of child support for the children, including a deadline and payment schedule, that takes into account the husband’s income at the time of divorce, the children’s standard of living before divorce, and a provision to increase the child support as needed to meet their growing needs;
  • Provide a fixed amount of alimony for the wife, including a deadline and payment schedule that takes into account the husband’s income at the time of divorce and the standard of living before divorce.

See: Conditions, Not Conflict: Promoting Women’s Human Rights in the Maghreb through Strategic Use of the Marriage Contract, Global Rights, 2008. 

  • Legislation should provide equal rights for women for divorce and for adequate alimony for spouses and children.  See:  the Maputo Protocol, Article 7

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.

 

  • Legislation should provide for the complainant/survivor’s right to stay in the home after the divorce.
  • Legislation should provide for social insurance and pension rights for complainant/survivors.
  • Legislation should ensure equal rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

 

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.

 

  • Legislation should provide for expedited distribution of property in divorce cases involving domestic violence. Laws should ensure that stridhan and any dowry or gifts given by the woman’s family is given to her in the event of divorce. Laws should broadly define dowry as any property, goods, cash or valuable security given either directly or indirectly by one spouse or the spouse’s relatives to the other spouse or spouse’s relatives prior to, at or after the marriage.
  • Legislation should mandate careful screening of all custody and visitation cases to determine if there is a history of domestic violence or dowry-related violence.
  • Drafters must consider the dynamics of domestic violence and dowry-related violence and harassment when drafting laws and regulations on custody and visitation. 
  • Drafters must ensure that existing laws on child custody and other family law provisions focus on safety of the complainant/survivor and the best interests of the child in dowry-related violence cases. All provisions should be amended to reflect this focus.
  • Child abuse and neglect proceedings should target the perpetrators of violence and recognize that the protection of children is often best achieved by protecting their mothers. See: CASE STUDY:  Guidelines for Domestic Violence Cases with Child Witnesses.

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).