Women and Justice: Keywords

Legislation

Code of Virginia: Property Rights of Married Women (Va. Code § 55-35)

Gender discrimination, Property and inheritance rights

This Virginia law provides that a married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried. 



Married Persons Equality Act (1996)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.



Civil Code of Iran (Marital Duties) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

According to Iranian law, the husband is the exclusive holder of the position of “head of the family”  (Art. 1105).  As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times.  This is the tamkin (submission) requirement of Sharia law.  If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114).  If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling.  If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).



Domestic Case Law

Nese Aslanbay Akbiyik Basvurusu, Case Application Number: 2014/5836 Constitutional Court of Turkey (2015)

Gender discrimination

The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name. On appeal, the Constitutional Court applied both Turkish law and international law to find that a person’s right to a name, including their surname, is an inalienable right. The Court looked to precedent from the European Court of Human Rights in finding that protection of a person’s name including person’s surname is covered by Article 8 (respect for private and family life). The Court also found that the protections afforded by Article 17 of the Turkish Constitution overlapped with the protections in Article 8 of the European Convention on Human Rights. Consequently, the Court concluded that, since the right to one’s name is protected in the Turkish Constitution and within the scope of international agreements to which Turkey is a party—including the European Convention of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights—men and women are entitled to equal rights to use their pre-marriage last name.



Mensah v. The Republic Court Martial Appeal Court (2009)

Employment discrimination, Gender discrimination

In 2008, Mr. Mensah married ABI Dosu Theresa when they were both members of the Ghana Armed Forces. Because Mr. Mensah was an officer and Theresa was a female of a different rank, the marriage violated the Armed Forces Act, which requires that for a male officer to marry a lower-ranked woman, the woman must first resign and obtain the “requisite prior approval for her release from the Ghana Armed Forces.” Mr. Mensah was thus dismissed from the Armed Forces. The Court upheld the dismissal, holding that the law was not discriminatory and was a justified means that the Armed Forces used to maintain discipline.



Decision 2012Do14788 Supreme Court of South Korea (2013)

Gender-based violence in general

After threatening and assaulting the Victim (wife) with a deadly weapon, the Defendant (husband) had violent sexual intercourse with his wife after they had started using separate rooms due to consistent dispute.” The Supreme Court found that the term ‘female’ as the victim of rape as provided by Article 297 of the Criminal Act included the offender’s legally wedded wife and that the crime of rape was established when the husband had sexual intercourse with his wife by disabling or hindering resistance through violence or intimidation in a sustained marriage. The Supreme Court stated that the legal interests protected by rape laws are not ‘women’s fidelity’ or ‘sexual chastity’ concepts based on the premise of a man as a current or future spouse, but a woman’s own sexual autonomy as a free and independent individual. Therefore, the Court concluded that the crime of rape was established in this forced marital sex case.



Case Number E.1999/27, K.1999/42 Constitutional Court of Turkey (1999)

Divorce and dissolution of marriage

Article 237.4 of the Turkish Criminal Code provides for a penalty of two to six month imprisonment if a man or woman holds a religious wedding ceremony before a civil ceremony. Under Turkey’s principle of equality, different individuals with different legal statuses may be treated differently. The Constitutional Court found that the statute does not violate the principle of equality because unmarried individuals have a different legal status than those who have conducted a religious wedding ceremony. In reaching its decision, the Court also noted that legislature has discretionary power to make laws, the Constitution provides for the protection of family life, and the statute does not prohibit religious ceremonies entirely.



Julius Rwabinumi v. Hope Bahimbisomwe Court of Appeals of Uganda (2008)

Divorce and dissolution of marriage

A husband appealed from a divorce proceeding ordering that the divorcing parties share various properties accumulated during the marriage (Ground No. 4). He contended that his wife (the respondent) had no right to such property because she did not produce evidence to prove her contribution to the acquisition of such property. The issues are whether there is an established legal formula for division of property after divorce, and whether spousal contribution plays a role in such division. After reviewing the traditional approach accounting for spousal contribution, the court found that the enactment of the 1995 Constitution drastically changed the wife’s legal position and rights after divorce. Specifically, Article 31(1) provides equal rights to husband and wife during marriage and dissolution. Thus, the court found that marital property jointly belonged to the husband and wife, and thus contribution to the property is irrelevant. Notwithstanding the parties’ right to freely contract prior to a marriage agreement, the court found that, upon dissolution, matrimonial property ought to be divided equally and shared “to the extent possible and practicable”.



International Case Law

Unal Tekeli v. Turkey European Court of Human Rights (2004)

Gender discrimination

The European Court of Human rights held that a Turkish Law preventing married women from keeping their own surname after marriage is unlawful discrimination on the basis of sex. As required under Turkish law, upon marriage Ms. Unal Tekeli took her husband’s last name. She continued to use her maiden name in her professional life and put it in front of her legal surname, but could not use her maiden name in official documents. She brought suit in the Turkish Courts requesting that she be able to use her maiden name and that the law was discriminatory, but her case was dismissed both at the trial court and upon appeal. After being dismissed, she brought suit in the European Court of Human Rights, alleging discrimination. The Court first determined that differential treatment did exist because under the law, married men were treated differently from married women. Next, it found that no objective and reasonable justification existed for such differential treatment. It acknowledged that Turkey has a goal of preserving the family unit, but noted that this goal was not defeated by allowing women to keep their surnames. Thus, preserving the family unit was not a justification for the unequal treatment of married men and married women. The Court held that the difference in treatment based on sex violated international law.



Tanbay Tuten v. Turkey European Court of Human Rights (2013)

Gender discrimination

Ms. Tanbay Tuten, a university professor, was married and took her husband’s surname as required by law in 1992. She continued, however, to use her maiden name in her professional life, even though she could not use it in official documents. In 2007, she brought a proceeding in the Turkish Courts requesting that she be allowed to use only her maiden name, but was denied in the lower court and on appeal. Ms. Tuten brought her case to the European Court of Human Rights contending that the law is discrimination on ground of sex. The Court held that the difference in treatment on grounds of sex was in violation of Article 14 and Article 8 of the Convention and based its analysis on Tekeli v. Turkey.