Women and Justice: Keywords


Marriage and Family Code Chapter 6: Termination of Marriage (1999)

Divorce and dissolution of marriage

Under Art. 34, a marriage can be terminated upon a joint application of both spouses or at the request of one spouse. Under Art. 35, the termination of a marriage is prohibited during the pregnancy of the wife and before the child has reached the age of three without the written consent of the other spouse, unless the other spouse does not live with the child, or there is a decision determining that another person is the father of the child. In accordance with Art. 39, upon receiving a claim for divorce, the court grants the couple a three-month period to take measures for reconciliation and to reach an agreement on division of property and childcare; after the expiration of the three-month period, the court grants the divorce if it finds that “the preservation of the family has become impossible.” However, when considering the claim for divorce, the court takes measures aimed at preserving the family and may grant an additional reconciliation period of up to six months. The court decides with which of the former spouses the child/children will live and the participation in the upbringing of the child of the other parent, as well as the amount of alimony that the other parent will pay in accordance with Art. 39.

Domestic Case Law

Decision of the Constitutional Court of the Republic of Belarus 28 December 2011 No. P-672/2011 Конституционного Суда (Constitutional Court of Belarus) (2011)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The Constitutional Court reviewed the constitutionality of the law “on Amendments and Additions to the Code of the Republic of Belarus on Marriage and Family” dated 2011. The Court noted that the Constitution protects marriage, family, motherhood, fatherhood, and childhood. It further noted that the protection and strengthening of the family institution is an integral part of the State’s social policy and held that amendments to the Code are aimed at protecting the family. The Court further noted that the Constitutional guarantee on the equality of both spouses means equal rights and obligations, including the obligation, financially, to support the other spouse. This constitutional guarantee is implemented by the amendments to the Code as it expands the list of circumstances when one spouse can apply to a court for maintenance, including when that spouse is caring for a disabled common child. The Court also held that amendments to the Code establishing that certain contracts between the spouses, such as a prenuptial agreement and agreement on payment of alimony if they contain conditions regarding immovable property, have to be registered with the appropriate State organs, are aimed at ensuring legal certainty and consistency of legal regulation of marriage and family relationships. The Court held that the law “on Amendments and Additions to the Code of the Republic of Belarus on Marriage and Family” dated 2011 was constitutional as it was aimed at strengthening marriage and family institutions, and increasing the spouses’ awareness of their rights and responsibilities.

Nadeem Masood v. The State Lahore High Court (2015)

Sexual violence and rape, Statutory rape or defilement

The appellant arrived at the respondent’s home armed with a pistol and raped her. The respondent, 16 years old at the time, was already 32 weeks pregnant with the appellant’s child due to multiple previous rapes. The respondent filed a suit against the appellant and gave birth to a daughter during the trial. The Trial Court found the appellant guilty and sentenced him to 20 years of imprisonment, to which he appealed to the Lahore High Court. Under the criminal laws of Pakistan, it is rape when a man has sexual intercourse with a woman with or without her consent when she is 16 years old or under. It is also rape when a woman gives consent due to fear of death or being hurt. The appellant argued the lesser offence of fornication, which is a crime committed when two people have sexual intercourse outside of marriage. The appellant argued that the Trial Court should not have convicted him of rape as the respondent had consented to the sexual intercourse. The offence of fornication is only punishable by imprisonment for up to five years with a maximum fine of ten thousand rupees, whereas rape is punishable by imprisonment for up to 25 years and/or a fine. The High Court held that since the respondent was 16 years old at the time of rape, it qualified as rape irrespective of the respondent’s consent. The High Court also expressed its concern over the Trial Court’s failure to award compensation to the child. Notably, the High Court held that children born because of rape would suffer “mental anguish and psychological damage” for their entire life, and should, therefore, be entitled to compensation. The appellant was ordered to pay a fine of one million rupees to the child born as a result of the rape, in addition to the compensation payable to the respondent.

Bergaust v. Flaherty Court of Appeals of Virginia (2011)

Gender discrimination, Property and inheritance rights

The plaintiff, a mother, brought a petition for child support against the putative father. The two met during a trip to France and had a long-distance relationship for 18 months. After returning to Virginia from another visit to the defendant in France, the plaintiff learned she was pregnant. Because the defendant was her only sexual partner during the relevant time period, she informed the defendant that the child was his. The defendant said he would help in any way he could and called twice a week during the pregnancy. Their child was born in Alexandria, Virginia, and the defendant continued to call regularly during this time. When the child was seven months old, the defendant came to Virginia to meet and spend time with the child. Following this visit, the defendant’s contact with the plaintiff decreased and ultimately ceased. Several years later, the plaintiff learned of the defendant’s whereabouts and brought a petition for child support. The circuit court dismissed the petition for lack of personal jurisdiction. The question before the Virginia Court of Appeals was whether the defendant had fathered a child in Virginia pursuant to the long-arm statute that provided, in part, that a court may exercise personal jurisdiction over a person when it is shown that the person “conceived or fathered” a child in Virginia. The statute does not define the terms “conceived or fathered.” In finding no personal jurisdiction, the Court of Appeals affirmed the circuit court’s interpretation of the term “fathered” to mean “to beget or to procreate as father,” rejecting the plaintiff’s argument that the term encompassed “the acknowledgment of parentage” while in Virginia. Although the Court of Appeals acknowledged that the ordinary meaning of “fathered” includes “to make oneself the father…by acknowledgment,” the court concluded that if the state legislature had intended this broader meaning of the term, it “presumably would have included the word ‘mothered’ along with ‘conceived or fathered’ to encompass the non-custodial mother of a child living in [Virginia].” Therefore, per Virginia law, the child was not fathered in Virginia and the long-arm statute could not grant personal jurisdiction over the matter.

deCamp v. deCamp Court of Appeals of Virginia: Chesapeake (2014)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant and the appellee were married for 21 years and had three children. After the birth of their first child, by mutual agreement of the parties, the appellee stopped working and became a homemaker and the children’s primary caregiver. In adjudicating couple’s separation agreement, the trial court ordered the appellant to pay the appellee spousal support in addition to child support pursuant to statutory guidelines. On appeal, the appellant raised several arguments including that the trial court failed to exclude child-related expenses that he already had to pay for through child support awarded to appellee and that the court erred in refusing to impute income to appellee even though she was voluntarily unemployed. With respect to the first argument, the court affirmed the trial court’s conclusion, explaining that expenses that are indivisible by nature or trivial in amount need not be segregated. Although “some of wife’s claimed expenses did indeed include expenses attributable to the children, such as Internet service fees, utilities, and food,” those expenses were properly included in the spousal support award because they were “indivisible by their very nature.” With respect to the trial court’s refusal to impute income to the appellee, the court explained that “the law does not require wife return to work immediately upon divorce to avoid judicial imputation of income merely because she has provable earning capacity at the time of the divorce.” Rather, any decision to impute income must be done “within a review of all the statutory factors concerning spousal support.” Under the circumstances, the court found the trial court’s refusal to impute income to the appellee to be supported by the facts, given that the appellant had been the sole monetary contributor for the entire duration of their marriage, the appellee had left her nursing career in order to be a full-time homemaker and caregiver for their children, and the family moved eight times over the course of the marriage in order to enable the appellant to pursue and advance his military career. Thus, the refusal to impute any income to her was not an error.

23 Pa. C.S.A. § 4301, Domestic Relations - Child Support (1985)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania uses a system referred to as the “Income Shares Model” for determining child support. This methodology focuses primarily on the net incomes of the parents and aims to grant the children the same proportion of the parental income that he or she would have received had the parents not divorced.

M., L. del V. v. G., E.J. Tribunal de Familia de la Provincia de Jujuy (Family Court of the Jujuy Province) (2012)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following the separation of the plaintiff, Ms. L. del V., from the defendant, Mr. G., the defendant failed to pay their daughter’s school tuition or English lessons, took all of the family’s working vehicles, and sporadically paid no more than 40% of stipulated child support. The plaintiff further alleged that the parties’ attempt at a negotiated solution constituted extortion given that she would not receive any support until they reached an agreement. The parties subsequently negotiated an agreement, which the plaintiff later found to be inadequate. In finding for the plaintiff, the court found that the defendant’s conduct constituted economic violence defined as the failure to provide required assistance, particularly where the woman has dedicated herself to childrearing at the time of separation and that the repeated failure to provide required support following separation would have a severe effect on the mother and child.

Luego de la separación del demandante, la Sra. L. del V., del demandado, el Sr. G., el demandado no pagó la matrícula escolar o las clases de inglés de su hija, tomó todos los vehículos de trabajo de la familia y esporádicamente no pagó más del 40% de la pensión alimenticia estipulada. La demandante además alegó que el intento de las partes por una solución negociada constituía una extorsión, dado que ella no recibiría ningún apoyo hasta que llegasen a un acuerdo. Posteriormente, las partes negociaron un acuerdo, que luego el demandante consideró inadecuado. Al encontrar al demandante, el tribunal determinó que la conducta del acusado constituía violencia económica definida como la falta de asistencia requerida, en particular cuando la mujer se habia dedicado a la crianza de los hijos desde el momento de la separación y que la falta reiterada de proporcionar la asistencia necesaria después de la separación tendría un efecto severo en la madre y el niño.

Kirungi v. Mugabe High Court at Kampala (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner requests a divorce from the respondent and money to care for the parties’ daughter, for whom the petitioner is the sole caregiver. The parties were married in July 2008 in Uganda and then moved to Woburn, Massachusetts, USA. The respondent husband physically abused his wife, especially when intoxicated. During the time they lived together, the respondent usually slept in the sitting room. For three years they lived apart, but were reconciled by relatives. During the reconciliation, the parties had a daughter. The respondent was never involved in caring for the child and eventually left the family home to live with his mother 45 minutes away. The petitioner returned to Uganda where she is the sole parent and provider for her daughter. The court granted the request for a divorce on the grounds of cruelty and desertion. The court explained that the best interests of the child control all determinations relating to children. The court granted the petitioner custody of the daughter and $400 (USD or the USh equivalent) per month from the respondent for their daughter’s maintenance.

Petlane v. Petlane High Court of Lesotho (1999)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support. First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.

D.B.S. v S.R.G. Supreme Court of Canada (2006)

Divorce and dissolution of marriage

This case concerned the issue of child support and the entitlement of recipient spouses, predominantly mothers, to increased child support following an increase in the income of payer spouses, who are predominantly fathers. The Supreme Court of Canada ruled unanimously that ex-spouses could face significant retroactive child support payments if they failed to declare their increased earnings.

Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.