| General
recommendation 21 - Equality in marriage and family relations
(Thirteenth session)
1. The Convention
on the Elimination of All Forms of Discrimination against Women
(General Assembly resolution 34/180, annex) affirms the equality
of human rights for women and men in society and in the family.
The Convention has an important place among international treaties
concerned with human rights.
2. Other conventions
and declarations also confer great significance on the family and
woman's status within it. These include the Universal Declaration
of Human Rights (General Assembly resolution 217/A (III), the International
Covenant on Civil and Political Rights (resolution 2200 A (XXI),
annex), the Convention on the Nationality of Married Women (resolution
1040 (XI), annex), the Convention on Consent to Marriage, Minimum
Age for Marriage and Registration of Marriages (resolution 1763
A (XVII), annex) and the subsequent Recommendation thereon (resolution
2018 (XX)) and the Nairobi Forward-looking Strategies for the Advancement
of Women.
3. The Convention
on the Elimination of All Forms of Discrimination against Women
recalls the inalienable rights of women which are already embodied
in the above-mentioned conventions and declarations, but it goes
further by recognizing the importance of culture and tradition in
shaping the thinking and behaviour of men and women and the significant
part they play in restricting the exercise of basic rights by women.
Background
4. The year 1994 has been designated by the General Assembly in
its resolution 44/82 as the International Year of the Family. The
Committee wishes to take the opportunity to stress the significance
of compliance with women's basic rights within the family as one
of the measures which will support and encourage the national celebrations
that will take place.
5. Having chosen
in this way to mark the International Year of the Family, the Committee
wishes to analyse three articles in the Convention that have special
significance for the status of women in the family:
Article 9
1. States parties shall grant women equal rights with men to acquire,
change or retain their nationality. They shall ensure in particular
that neither marriage to an alien nor change of nationality by the
husband during marriage shall automatically change the nationality
of the wife, render her stateless or force upon her the nationality
of the husband.
2. States parties
shall grant women equal rights with men with respect to the nationality
of their children.
Comment
6. Nationality is critical to full participation in society. In
general, States confer nationality on those who are born in that
country. Nationality can also be acquired by reason of settlement
or granted for humanitarian reasons such as statelessness. Without
status as nationals or citizens, women are deprived of the right
to vote or to stand for public office and may be denied access to
public benefits and a choice of residence. Nationality should be
capable of change by an adult woman and should not be arbitrarily
removed because of marriage or dissolution of marriage or because
her husband or father changes his nationality.
Article 15
1. States parties shall accord to women equality with men before
the law.
2. States parties
shall accord to women, in civil matters, a legal capacity identical
to that of men and the same opportunities to exercise that capacity.
In particular, they shall give women equal rights to conclude contracts
and to administer property and shall treat them equally in all stages
of procedure in courts and tribunals.
3. States parties
agree that all contracts and all other private instruments of any
kind with a legal effect which is directed at restricting the legal
capacity of women shall be deemed null and void.
4. States parties
shall accord to men and women the same rights with regard to the
law relating to the movement of persons and the freedom to choose
their residence and domicile.
Comment
7. When a woman cannot enter into a contract at all, or have access
to financial credit, or can do so only with her husband's or a male
relative's concurrence or guarantee, she is denied legal autonomy.
Any such restriction prevents her from holding property as the sole
owner and precludes her from the legal management of her own business
or from entering into any other form of contract. Such restrictions
seriously limit the woman's ability to provide for herself and her
dependants.
8. A woman's
right to bring litigation is limited in some countries by law or
by her access to legal advice and her ability to seek redress from
the courts. In others, her status as a witness or her evidence is
accorded less respect or weight than that of a man. Such laws or
customs limit the woman's right effectively to pursue or retain
her equal share of property and diminish her standing as an independent,
responsible and valued member of her community. When countries limit
a woman's legal capacity by their laws, or permit individuals or
institutions to do the same, they are denying women their rights
to be equal with men and restricting women's ability to provide
for themselves and their dependants.
9. Domicile
is a concept in common law countries referring to the country in
which a person intends to reside and to whose jurisdiction she will
submit. Domicile is originally acquired by a child through its parents
but, in adulthood, denotes the country in which a person normally
resides and in which she intends to reside permanently. As in the
case of nationality, the examination of States parties' reports
demonstrates that a woman will not always be permitted at law to
choose her own domicile. Domicile, like nationality, should be capable
of change at will by an adult woman regardless of her marital status.
Any restrictions on a woman's right to choose a domicile on the
same basis as a man may limit her access to the courts in the country
in which she lives or prevent her from entering and leaving a country
freely and in her own right.
10. Migrant
women who live and work temporarily in another country should be
permitted the same rights as men to have their spouses, partners
and children join them.
Article 16
1. States parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage
and family relations and in particular shall ensure, on a basis
of equality of men and women:
(a) The same
right to enter into marriage;
(b) The same
right freely to choose a spouse and to enter into marriage only
with their free and full consent;
(c) The same
rights and responsibilities during marriage and at its dissolution;
(d) The same
rights and responsibilities as parents, irrespective of their
marital status, in matters relating to their children; in all
cases the interests of the children shall be paramount;
(e) The same
rights to decide freely and responsibly on the number and spacing
of their children and to have access to the information, education
and means to enable them to exercise these rights;
(f) The same
rights and responsibilities with regard to guardianship, wardship,
trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation; in all cases
the interests of the children shall be paramount;
(g) The same
personal rights as husband and wife, including the right to choose
a family name, a profession and an occupation;
(h) The same
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.
2. The betrothal
and the marriage of a child shall have no legal effect, and all
necessary action, including legislation, shall be taken to specify
a minimum age for marriage and to make the registration of marriages
in an official registry compulsory.
Comment
Public and
private life
11. Historically, human activity in public and private life has
been viewed differently and regulated accordingly. In all societies
women who have traditionally performed their roles in the private
or domestic sphere have long had those activities treated as inferior.
12. As such
activities are invaluable for the survival of society, there can
be no justification for applying different and discriminatory laws
or customs to them. Reports of States parties disclose that there
are still countries where de jure equality does not exist. Women
are thereby prevented from having equal access to resources and
from enjoying equality of status in the family and society. Even
where de jure equality exists, all societies assign different roles,
which are regarded as inferior, to women. In this way, principles
of justice and equality contained in particular in article 16 and
also in articles 2, 5 and 24 of the Convention are being violated.
Various forms
of family
13. The form and concept of the family can vary from State to State,
and even between regions within a State. Whatever form it takes,
and whatever the legal system, religion, custom or tradition within
the country, the treatment of women in the family both at law and
in private must accord with the principles of equality and justice
for all people, as article 2 of the Convention requires.
Polygamous
marriages
14. States parties' reports also disclose that polygamy is practised
in a number of countries. Polygamous marriage contravenes a woman's
right to equality with men, and can have such serious emotional
and financial consequences for her and her dependants that such
marriages ought to be discouraged and prohibited. The Committee
notes with concern that some States parties, whose constitutions
guarantee equal rights, permit polygamous marriage in accordance
with personal or customary law. This violates the constitutional
rights of women, and breaches the provisions of article 5 (a) of
the Convention.
Article 16
(1) (a) and (b)
15. While most countries report that national constitutions and
laws comply with the Convention, custom, tradition and failure to
enforce these laws in reality contravene the Convention.
16. A woman's
right to choose a spouse and enter freely into marriage is central
to her life and to her dignity and equality as a human being. An
examination of States parties' reports discloses that there are
countries which, on the basis of custom, religious beliefs or the
ethnic origins of particular groups of people, permit forced marriages
or remarriages. Other countries allow a woman's marriage to be arranged
for payment or preferment and in others women's poverty forces them
to marry foreign nationals for financial security. Subject to reasonable
restrictions based for example on a woman's youth or consanguinity
with her partner, a woman's right to choose when, if, and whom she
will marry must be protected and enforced at law.
Article 16
(1) (c)
17. An examination of States parties' reports discloses that many
countries in their legal systems provide for the rights and responsibilities
of married partners by relying on the application of common law
principles, religious or customary law, rather than by complying
with the principles contained in the Convention. These variations
in law and practice relating to marriage have wide-ranging consequences
for women, invariably restricting their rights to equal status and
responsibility within marriage. Such limitations often result in
the husband being accorded the status of head of household and primary
decision-maker and therefore contravene the provisions of the Convention.
18. Moreover,
generally a de facto union is not given legal protection at all.
Women living in such relationships should have their equality of
status with men both in family life and in the sharing of income
and assets protected by law. Such women should share equal rights
and responsibilities with men for the care and raising of dependent
children or family members.
Article 16
(1) (d) and (f)
19. As provided in article 5 (b), most States recognize the shared
responsibility of parents for the care, protection and maintenance
of children. The principle that "the best interests of the
child shall be the paramount consideration" has been included
in the Convention on the Rights of the Child (General Assembly resolution
44/25, annex) and seems now to be universally accepted. However,
in practice, some countries do not observe the principle of granting
the parents of children equal status, particularly when they are
not married. The children of such unions do not always enjoy the
same status as those born in wedlock and, where the mothers are
divorced or living apart, many fathers fail to share the responsibility
of care, protection and maintenance of their children.
20. The shared
rights and responsibilities enunciated in the Convention should
be enforced at law and as appropriate through legal concepts of
guardianship, wardship, trusteeship and adoption. States parties
should ensure that by their laws both parents, regardless of their
marital status and whether they live with their children or not,
share equal rights and responsibilities for their children.
Article 16
(1) (e)
21. The responsibilities that women have to bear and raise children
affect their right of access to education, employment and other
activities related to their personal development. They also impose
inequitable burdens of work on women. The number and spacing of
their children have a similar impact on women's lives and also affect
their physical and mental health, as well as that of their children.
For these reasons, women are entitled to decide on the number and
spacing of their children.
22. Some reports
disclose coercive practices which have serious consequences for
women, such as forced pregnancies, abortions or sterilization. Decisions
to have children or not, while preferably made in consultation with
spouse or partner, must not nevertheless be limited by spouse, parent,
partner or Government. In order to make an informed decision about
safe and reliable contraceptive measures, women must have information
about contraceptive measures and their use, and guaranteed access
to sex education and family planning services, as provided in article
10 (h) of the Convention.
23. There is
general agreement that where there are freely available appropriate
measures for the voluntary regulation of fertility, the health,
development and well-being of all members of the family improves.
Moreover, such services improve the general quality of life and
health of the population, and the voluntary regulation of population
growth helps preserve the environment and achieve sustainable economic
and social development.
Article 16
(1) (g)
24. A stable family is one which is based on principles of equity,
justice and individual fulfilment for each member. Each partner
must therefore have the right to choose a profession or employment
that is best suited to his or her abilities, qualifications and
aspirations, as provided in article 11 (a) and (c) of the Convention.
Moreover, each partner should have the right to choose his or her
name, thereby preserving individuality and identity in the community
and distinguishing that person from other members of society. When
by law or custom a woman is obliged to change her name on marriage
or at its dissolution, she is denied these rights.
Article 16
(1) (h)
25. The rights provided in this article overlap with and complement
those in article 15 (2) in which an obligation is placed on States
to give women equal rights to enter into and conclude contracts
and to administer property.
26. Article
15 (1) guarantees women equality with men before the law. The right
to own, manage, enjoy and dispose of property is central to a woman's
right to enjoy financial independence, and in many countries will
be critical to her ability to earn a livelihood and to provide adequate
housing and nutrition for herself and for her family.
27. In countries
that are undergoing a programme of agrarian reform or redistribution
of land among groups of different ethnic origins, the right of women,
regardless of marital status, to share such redistributed land on
equal terms with men should be carefully observed.
28. In most
countries, a significant proportion of the women are single or divorced
and many have the sole responsibility to support a family. Any discrimination
in the division of property that rests on the premise that the man
alone is responsible for the support of the women and children of
his family and that he can and will honourably discharge this responsibility
is clearly unrealistic. Consequently, any law or custom that grants
men a right to a greater share of property at the end of a marriage
or de facto relationship, or on the death of a relative, is discriminatory
and will have a serious impact on a woman's practical ability to
divorce her husband, to support herself or her family and to live
in dignity as an independent person.
29. All of these
rights should be guaranteed regardless of a woman's marital status.
Marital property
30. There are countries that do not acknowledge that right of women
to own an equal share of the property with the husband during a
marriage or de facto relationship and when that marriage or relationship
ends. Many countries recognize that right, but the practical ability
of women to exercise it may be limited by legal precedent or custom.
31. Even when
these legal rights are vested in women, and the courts enforce them,
property owned by a woman during marriage or on divorce may be managed
by a man. In many States, including those where there is a community-property
regime, there is no legal requirement that a woman be consulted
when property owned by the parties during marriage or de facto relationship
is sold or otherwise disposed of. This limits the woman's ability
to control disposition of the property or the income derived from
it.
32. In some
countries, on division of marital property, greater emphasis is
placed on financial contributions to property acquired during a
marriage, and other contributions, such as raising children, caring
for elderly relatives and discharging household duties are diminished.
Often, such contributions of a non-financial nature by the wife
enable the husband to earn an income and increase the assets. Financial
and non-financial contributions should be accorded the same weight.
33. In many
countries, property accumulated during a de facto relationship is
not treated at law on the same basis as property acquired during
marriage. Invariably, if the relationship ends, the woman receives
a significantly lower share than her partner. Property laws and
customs that discriminate in this way against married or unmarried
women with or without children should be revoked and discouraged.
Inheritance
34. Reports of States parties should include comment on the legal
or customary provisions relating to inheritance laws as they affect
the status of women as provided in the Convention and in Economic
and Social Council resolution 884D (XXXIV), in which the Council
recommended that States ensure that men and women in the same degree
of relationship to a deceased are entitled to equal shares in the
estate and to equal rank in the order of succession. That provision
has not been generally implemented.
35. There are
many countries where the law and practice concerning inheritance
and property result in serious discrimination against women. As
a result of this uneven treatment, women may receive a smaller share
of the husband's or father's property at his death than would widowers
and sons. In some instances, women are granted limited and controlled
rights and receive income only from the deceased's property. Often
inheritance rights for widows do not reflect the principles of equal
ownership of property acquired during marriage. Such provisions
contravene the Convention and should be abolished.
Article 16
(2)
36. In the Vienna Declaration and Programme of Action adopted by
the World Conference on Human Rights, held at Vienna from 14 to
25 June 1993, States are urged to repeal existing laws and regulations
and to remove customs and practices which discriminate against and
cause harm to the girl child. Article 16 (2) and the provisions
of the Convention on the Rights of the Child preclude States parties
from permitting or giving validity to a marriage between persons
who have not attained their majority. In the context of the Convention
on the Rights of the Child, "a child means every human being
below the age of 18 years unless, under the law applicable to the
child, majority is attained earlier". Notwithstanding this
definition, and bearing in mind the provisions of the Vienna Declaration,
the Committee considers that the minimum age for marriage should
be 18 years for both man and woman. When men and women marry, they
assume important responsibilities. Consequently, marriage should
not be permitted before they have attained full maturity and capacity
to act. According to the World Health Organization, when minors,
particularly girls, marry and have children, their health can be
adversely affected and their education is impeded. As a result their
economic autonomy is restricted.
37. This not
only affects women personally but also limits the development of
their skills and independence and reduces access to employment,
thereby detrimentally affecting their families and communities.
38. Some countries
provide for different ages for marriage for men and women. As such
provisions assume incorrectly that women have a different rate of
intellectual development from men, or that their stage of physical
and intellectual development at marriage is immaterial, these provisions
should be abolished. In other countries, the betrothal of girls
or undertakings by family members on their behalf is permitted.
Such measures contravene not only the Convention, but also a women's
right freely to choose her partner.
39. States parties
should also require the registration of all marriages whether contracted
civilly or according to custom or religious law. The State can thereby
ensure compliance with the Convention and establish equality between
partners, a minimum age for marriage, prohibition of bigamy and
polygamy and the protection of the rights of children.
Recommendations
Violence
against women
40. In considering the place of women in family life, the Committee
wishes to stress that the provisions of general recommendation 19
(eleventh session) concerning violence against women have great
significance for women's abilities to enjoy rights and freedoms
on an equal basis with men. States parties are urged to comply with
that general recommendation to ensure that, in both public and family
life, women will be free of the gender-based violence that so seriously
impedes their rights and freedoms as individuals.
Reservations
41. The Committee has noted with alarm the number of States parties
which have entered reservations to the whole or part of article
16, especially when a reservation has also been entered to article
2, claiming that compliance may conflict with a commonly held vision
of the family based, inter alia, on cultural or religious beliefs
or on the country's economic or political status.
42. Many of
these countries hold a belief in the patriarchal structure of a
family which places a father, husband or son in a favourable position.
In some countries where fundamentalist or other extremist views
or economic hardships have encouraged a return to old values and
traditions, women's place in the family has deteriorated sharply.
In others, where it has been recognized that a modern society depends
for its economic advance and for the general good of the community
on involving all adults equally, regardless of gender, these taboos
and reactionary or extremist ideas have progressively been discouraged.
43. Consistent
with articles 2, 3 and 24 in particular, the Committee requires
that all States parties gradually progress to a stage where, by
its resolute discouragement of notions of the inequality of women
in the home, each country will withdraw its reservation, in particular
to articles 9, 15 and 16 of the Convention.
44. States parties
should resolutely discourage any notions of inequality of women
and men which are affirmed by laws, or by religious or private law
or by custom, and progress to the stage where reservations, particularly
to article 16, will withdrawn.
45. The Committee
noted, on the basis of its examination of initial and subsequent
periodic reports, that in some States parties to the Convention
that had ratified or acceded without reservation, certain laws,
especially those dealing with family, do not actually conform to
the provisions of the Convention.
46. Their laws
still contain many measures which discriminate against women based
on norms, customs and socio-cultural prejudices. These States, because
of their specific situation regarding these articles, make it difficult
for the Committee to evaluate and understand the status of women.
47. The Committee,
in particular on the basis of articles 1 and 2 of the Convention,
requests that those States parties make the necessary efforts to
examine the de facto situation relating to the issues and to introduce
the required measures in their national legislations still containing
provisions discriminatory to women.
Reports
48. Assisted by the comments in the present general recommendation,
in their reports States parties should:
(a) Indicate
the stage that has been reached in the country's progress to removal
of all reservations to the Convention, in particular reservations
to article 16;
(b) Set out
whether their laws comply with the principles of articles 9, 15
and 16 and where, by reason of religious or private law or custom,
compliance with the law or with the Convention is impeded.
Legislation
49. States parties should, where necessary to comply with the Convention,
in particular in order to comply with articles 9, 15 and 16, enact
and enforce legislation.
Encouraging
compliance with the Convention
50. Assisted by the comments in the present general recommendation,
and as required by articles 2, 3 and 24, States parties should introduce
measures directed at encouraging full compliance with the principles
of the Convention, particularly where religious or private law or
custom conflict with those principles.
More
details of General Recommendations
1-10, 11-18,
19, 20,
21, 22,
23, 24,
25
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