Women and Justice: Topics: Divorce and dissolution of marriage, Domestic and intimate partner violence

Legislation

Family Law Act of 1975 (2018)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Section 4AB defines family violence, covering within its scope violent, threatening or other behavior by a person that coerces or controls a member of the family or causes that member to be fearful. Further, 4AB(2) sets out a list of behaviors that may constitute family violence, including assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, and unreasonably withholding financial support. The Act provides for divorce and nullity of marriage if the marriage has broken down irreparably. Furthermore, section 65AA deals with parental orders. The court must, pursuant to section 60CG, facilitate the child’s best interest but also to the extent possible ensure that any parental order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.



Recognition of Customary Marriage Act (1998)

Divorce and dissolution of marriage

The Act recognizes customary marriages solemnized in accordance with customary law. Customary law is defined as, “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.” Both monogamous and polygamous marriages are recognized under the Act. Although registration of a customary marriage is peremptory, a failure to register a customary marriage does not affect the validity of that marriage. The definition of customary law in this Act does not apply to Hindu and Muslim customary marriages.



Marriage Law of the People's Republic of China (2001)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination

The Marriage Law of the People’s Republic of China was adopted by the National People’s Congress on September 10, 1980 and amended on April 28, 2001. Article 2 provides that the marriage system is “based on the free choice of partners, on monogamy and on equality between man and woman.” Article 3 prohibits interference by a third party, mercenary marriage and exaction of money or gifts in connection with marriage. Article 6 provides the minimal marriage age is twenty-two for men and twenty for women. Article 13 provides that husband and wife shall have equal status in the family. Article 34 provides that “a husband may not apply for a divorce when his wife is pregnant, or within one year after the birth of the child, or within six months after the termination of her gestation.” Article 43 provides that neighborhood committee, villagers committee or the unit[1] to which the family belongs have an obligation to deter domestic violence. English version available here

 

[1] “Unit” is a term of art with strong communist connotations, which refers to the company/organization/group to which a person belongs.



Constitution of Zimbabwe (Amendment No. 20) (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.



23 Pa. C.S.A. § 3701, Domestic Relations - Alimony and Support (1990)

Divorce and dissolution of marriage, Property and inheritance rights

The determination of the nature, amount, and duration of alimony is based on the court’s weighing of several factors. Among the factors considered by the court in its alimony determination are the following: (1) the relative earnings of the parties; (2) the ages and the physical, mental, and emotional conditions of the parties; (3) the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; (4) the expectancies and inheritances of the parties; (5) the duration of the marriage; (6) the contribution by one party to the education, training, or increased earning power of the other party; (7) the extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child; (8) the standard of living of the parties established during the marriage; (9) the relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) the relative assets and liabilities of the parties; (11) the property brought to the marriage by either party; (12) the contribution of a spouse as homemaker; (13) the relative needs of the parties; (14) the marital misconduct of either of the parties during the marriage; (15) the Federal, State, and local tax ramifications of the alimony award; (16) whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 to provide for the party’s reasonable needs; and (17) whether the party seeking alimony is incapable of self-support through appropriate employment.



23 Pa. C.S.A. § 5301, Domestic Relations - Child Custody (2010)

Divorce and dissolution of marriage

In making custody and visitation decisions, Pennsylvania courts look to various factors in determining what is in the “best interest of the child.” The factors weighed by the court include: (1) the well-reasoned preference of the child, based on the child’s maturity and judgment; (2) the need for stability and continuity in the child’s education, family life and community life; (3) which parent is more likely to foster a relationship between the noncustodial parent and the child; (4) each parent’s history of violent or abusive conduct; and (5) specific criminal convictions. The court will only award sole custody when it is in the best interest of the child. Shared custody will only be awarded if: (1) one or both parents apply for it; (2) the parents have agreed to shared custody; or (3) the court determines it is in the best interest of the child. It is within the court’s discretion to require the parents to attend counseling sessions. Further, the court may review and consider recommendations from the counselor in making the final custody decision.



23 Pa. C.S.A. § 3501, Domestic Relations - Property Division (1990)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania is an equitable distribution state, which means the court will “equitably and fairly” divide, distribute, or assign the marital property between the parties, regardless of marital misconduct. “Marital property” generally means all property acquired by either spouse during the marriage. All property acquired by a spouse during their marriage is presumed to be marital property regardless of how title is held. In making its “equitable and fair” division of marital property, the court will weigh numerous factors, which include: the length of the marriage; any prior marriage of either party; the age, health, station, amount, and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the contribution by one party to the education, training, or increased earning power of the other party; the opportunity of each party for future acquisitions of capital assets and income; the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; the economic circumstances of each party at the time the division of property is to become effective; the federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned; the expense of sale, transfer, or liquidation associated with a particular asset; and whether the party will be serving as the custodian of any dependent minor child(ren).



23 Pa. C.S.A. § 3301, Domestic Relations - Grounds for Divorce (1990)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Under Pennsylvania law, a divorce can be either “fault-based” or “no-fault.” Grounds for a “fault-based” divorce include the following: abandonment (unmoving spouse has left the home) without a reasonable cause for a period of one or more years; adultery; cruel and barbarous treatment (unmoving spouse has treated movant in a way that puts his/her life or health at risk); bigamy (movant’s spouse married movant without first divorcing his/her spouse); imprisonment for two or more years; or movant’s spouse has acted in a way that made movant’s life unbearable or extremely difficult. Grounds for a “no-fault” divorce include the following: insanity or a serious mental disorder that resulted in confinement in a mental institution for at least 18 months immediately before the commencement of a divorce action; or where a complaint has been filed alleging that the marriage is “irretrievably broken.” When the grounds for divorce is that the marriage is “irretrievably broken,” the court may find that there is a “reasonable prospect of reconciliation.” If the court makes such a finding, it will continue the matter for up to 120 days, but not less than 90 days, unless the parties agree to a longer period. During this continuation period, if either party requests it, the court will require up to a maximum of three counseling sessions.



Maintenance Act (2003)

Divorce and dissolution of marriage, Gender discrimination

The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.



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.



The Constitution of the Republic of Namibia (1990)

Divorce and dissolution of marriage, Employment discrimination, Forced and early marriage, Gender discrimination

The Constitution serves as the fundamental law of Namibia and establishes the Republic of Namibia as an independent, secular, democratic, and unitary state safeguarding the rights to justice, liberty, dignity, and equality. Chapter 3 of the Constitution protects fundamental rights and freedoms, including the right to equality and freedom from discrimination, including on the grounds of sex. It also bans child marriages and mandates equal rights for men and women entering into marriage, during the marriage, and at the dissolution of the marriage. Additionally, Parliament may not make any laws that contravene the Constitution, nor can the Executive take any action that abolishes or contravenes Chapter 3 of the Constitution. Any such laws or actions would be invalid.



Código de la Familia (Family Code - Law No. 1289 of February 14, 1975) (1994)

Divorce and dissolution of marriage, Property and inheritance rights

Divorce in Cuba results in the dissolution of matrimonial ties and all other effects described in Article 49 of the Family Code. Pursuant to Article 50, divorce can be obtained by judicial decree or notarial deed. Prior to the enactment of the Second Final Disposition of Law No. 154 (“Law No. 154”), divorce in Cuba could only be obtained by means of judicial decree. However, Law No. 154 liberalized the means to obtain a divorce by allowing divorce to be effected by notarial deed. Divorce can be achieved by the mutual agreement of the spouses or when the tribunal confirms that the specific circumstances make divorce in the best interest of the spouses and the children and, as a result, for society. The law considers that a marriage has “lost sense”   for the spouses and their children and, hence, for society as a whole, when there are causes that create a situation in which, objectively, marriage is no longer, or cannot in the future be, the union of a man and a woman which allows them to exercise the rights, satisfy the obligations and achieve the objectives mentioned in Articles 24 through 28 (inclusive) of the Family Code. The law makes clear that each of the parties can exercise the option of divorce at any time during which the motivating cause exists. If the spouses have lived together for more than one year or had children during the marriage, the tribunal will award alimony to one of them in the following cases: (1) to the spouse that does not have a paying job and lacks other means of sustenance (this type of alimony is provisional and will be payable by the other spouse for six months if there are no minor children being taken care of by the receiving spouse or for one year if there are such minor children, so that the receiving spouse can obtain a paying job); and (2) to a spouse which as a result of incapacity, age, illness or other insurmountable impediment is unable to work and lacks other means of substance. In this case, the alimony will continue as long as the obstacle persists.

 

El divorcio en Cuba resulta en la disolución de los lazos matrimoniales y todos los demás efectos descritos en el Artículo 49 del Código de la Familia. En conformidad con el Artículo 50, el divorcio se puede obtener por decreto judicial o escritura notarial. Antes de la promulgación de la Segunda Disposición Final de la Ley No. 154 ("Ley No. 154"), el divorcio en Cuba solo podía obtenerse mediante un decreto judicial. Sin embargo, la Ley No. 154 liberalizó los medios para obtener un divorcio al permitir que se efectúe mediante escritura notarial. El divorcio puede lograrse mediante el acuerdo mutuo de los cónyuges o cuando el tribunal confirma que las circunstancias específicas hacen que el divorcio sea en el mejor interés de los cónyuges y los hijos y, como resultado, para la sociedad. La Ley considera que un matrimonio ha "perdido el sentido" para los cónyuges y sus hijos y, por lo tanto, para la sociedad en su conjunto, cuando hay causas que crean una situación en la que, objetivamente, el matrimonio ya no es, o no puede ser, en el futuro. La unión de un hombre y una mujer les permite ejercer los derechos, cumplir con las obligaciones y lograr los objetivos mencionados en los Artículos 24 a 28 (inclusive) del Código de la Familia. La ley deja claro que cada una de las partes puede ejercer la opción de divorcio en cualquier momento durante el cual exista la causa motivadora. Si los cónyuges han vivido juntos durante más de un año o han tenido hijos durante el matrimonio, el tribunal otorgará la pensión alimenticia a uno de ellos en los siguientes casos: (1) al cónyuge que no tiene un trabajo remunerado y carece de otros medios de sustentarse (este tipo de pensión alimenticia es provisional y será pagadero por el otro cónyuge durante seis meses si el cónyuge que recibe no cuida a los niños menores de edad o por un año si hay tales hijos menores, para que el cónyuge que los recibe pueda obtener un trabajo remunerado); y (2) a un cónyuge que, como resultado de una incapacidad, edad, enfermedad u otro impedimento insuperable, no pueda trabajar y carezca de otros medios de sustancia. En este caso, la pensión alimenticia continuará mientras persista el obstáculo.



Law No. 1 of 1974 Marriage Law (1974)

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

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.



Married Persons (Protection) Act (2000)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

Under the Married Person (Protection) Act, a married woman can apply for an order that she is not “bound to cohabit with her husband,” for legal custody of children under the age 16, and for maintenance.  A married woman’s application for one of these orders must include either a husband’s assault on her of requisite seriousness, desertion, cruelty, willful neglect to provide maintenance, the husband is a “habitual drunkard,” the husband had a venereal disease and insisted on sex, the husband compelled her to prostitution, or adultery.  The same orders are available to a husband, but on more limited grounds: the wife is a “habitual drunkard,” cruelty, adultery, or desertion.  The Supreme Court may still make an order for the judicial separation of a husband and wife and for the payment of alimony, which is separate from the legal options available under this Act.



Families and Children Act (2000)

Divorce and dissolution of marriage

The Families and Children Act governs the rights of a child, legal capacity and disabilities of children, guardianship and custody of children, status of children, support of children by government, maintenance rights and duties of members of the family as between themselves, maintenance of persons in public institutions, maintenance during divorce, separation or nullity, parentage of children, care and protection of children, foster-care, approved children homes, adoption, and the establishment of the National Committee for Families and Children.



Revised Family Code (2000)

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

The current family law in Ethiopia provides that there must be, inter alia, consent by both spouses to constitute a valid marriage (Article 6); respect and support between spouses (Article 49); equal rights in the management of the family (Article 50); fidelity owed by both husband and wife (Article 56). This is a substantial step forward in Ethiopian law.



Constitution of the Federal Democratic Republic of Ethiopia

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Gender-based violence in general, Harmful traditional practices, International law

Article 9 of the FDRE Constitution provides that all international treaties ratified by Ethiopia are integral parts of the law of the land. Similarly, Article 13.2 provides that fundamental rights and freedoms shall be interpreted in a manner conforming to the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia. Ethiopia has ratified many of these treaties including ICCPR, ICESCR, and CEDAW. Article 35 of the FDRE Constitution pertains to the Rights of Women. The article provides for equal rights under the constitution, equal rights with men in marriage, entitlement to affirmative measures, protection from harmful traditional practices, the right to maternity pay, the right to consultation, property rights (including acquiring and controlling and transferring property), employment rights, and access to family planning education. It is worth noting that this article explicitly imposes an obligation and accountability on the state to protect women from violence at Article 35.4:  “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.”



Swiss Civil Code (2013)

Divorce and dissolution of marriage

Art. 96: A person cannot remarry until the person proves that his or her previous marriage has been annulled or dissolved.

Art. 105: A person can annul a marriage if a spouse was already married when they wed.



The Islamic Penal Code of Iran, Books 1 & 2 (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, LGBTIQ

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


Hindu Marriage and Divorce Act of 1961 (1961)

Divorce and dissolution of marriage

The HMD Act regulates Hindu (including Jain and Sikh) marriages and codifies the specific requirements of these marriages and divorces.  



Customary Marriage (Registration) Act of 1973 (1973)

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

The Customary Marriage Act (CMA) sets parameters for acceptable customary marriages and requirements for registration and dissolution.  Customary marriages are prohibited if the female party is younger than 16 years old or the male party is younger than 18 years old, either party is of unsound mind, they are too closely related, the marriage is otherwise prohibited by one of the parties’ customs, or one of the parties is still in an existing monogamous marriage.  Subsequent monogamous or Muslim marriages will not be recognized and are void if there was a pre-existing customary marriage.



Domestic Case Law

Resolución Nº 00355 - 2016, Expediente: 12-110068-0671-TP Tribunal de Apelación de Sentencia Penal: III Circuito Judicial de Alajuela en San Ramón (2016)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

The Court established a unified standard of the legal meaning of a “factual union” (unión de hecho). This term is used in the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer) and in the Family Code (Código de Familia). However, the definition is composed of different elements under each of these legislations. For example, in the Family Code’s definition, the requirement for the marital union to have lasted for a three-year term is considered unnecessary in order to protect the life, free will, physical integrity, and the woman’s dignity in a marriage or factual union. In the unified standard, the Court established that the necessary elements of a factual union are the following: (1) stability (which excludes periodic relationships); (2) publicity (which excludes furtive relationships); (3) cohabitation (which excludes superficial relationships); and (4) singularity (which excludes multiplicity). The Court recognized these elements and acknowledged that they were also recognized by the Convention of Belém do Pará, establishing that it is also considered domestic violence when the aggressor lives with the victim (cohabitation).

El Tribunal estableció una definición legal unificada del significado de una “unión de hecho.” Dicho término se utiliza en la Ley de Penalización de la Violencia contra la Mujer y en el Código de la Familia. Sin embargo, la definición se compone de diferentes elementos en cada una de estas legislaciones. Por ejemplo, en la definición del Código de la Familia, el requisito de que la unión matrimonial haya durado un período de tres años se considera innecesario para proteger la vida, el libre albedrío, la integridad física y la dignidad de la mujer en un matrimonio o en una unión de hecho. En la norma unificada, la Corte estableció que los elementos necesarios de una unión de hecho son los siguientes: (1) estabilidad (lo cual excluye las relaciones periódicas); (2) publicidad (lo cual excluye relaciones furtivas); (3) la cohabitación (lo cual excluye las relaciones superficiales); y (4) la singularidad (lo cual excluye la multiplicidad). La Corte reconoció estos elementos y reconoció que también fueron reconocidos por la Convención de Belém do Pará, estableciendo que también se considera violencia doméstica cuando el agresor vive con la víctima (convivencia).



In re Zhou & Yang Divorce Litigation Intermediate People's Court of Wuxi Municipality (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant-wife appealed to the Intermediate People’s Court of Wuxi Municipality, Jiangsu Province in relation to the lower court’s refusal to grant a divorce. The appellant alleged that her marriage with the appellee was irreparably broken and that he had committed domestic violence against her. The appellant alleged that the domestic violence was corroborated by their daughter’s testimony and photographic evidence. The court held that even though the appellee might have beaten the appellant on at least one occasion, under the legal definition, domestic violence must constitute continuous multiple-time battery rather than [one occasional][1] conduct. Since the evidence submitted by the appellant was insufficient to demonstrate that the appellee’s conduct caused harmful consequences to the appellant, the court refused to grant their divorce. The court also admonished the appellee to fulfill his responsibility as a husband and to stop his "bad habits."

 

[1] Note to draft: This concept is unclear.  The exact translation of the Mandarin phrase would be “one occasional conduct.” From the context of the opinion, it appears that this means that occasional conduct, even if more than once, may not be sufficient if it is not indicative of a pattern of abuse.



Liu v. Zhang Intermediate People's Court of Fuyang Municipality Anhui Province (2014)

Divorce and dissolution of marriage, Property and inheritance rights

Liu and Zhang held the wedding ceremony in 2009 and registered for marriage in 2011.  In order to marry Liu, Zhang paid a “bride price” of 96,080 Chinese yuan, and Liu’s dowry included a television, refrigerator, washing machine and several pieces of furniture. Liu filed for divorce in 2013, and Zhang requested Liu to return part or all of the bride price. The court found that the bride price was paid for the purpose of marrying Liu, and its payment led to difficulty in Zhang’s parents’ life after Zhang’s marriage. Thus, the court held that Liu was required to return a portion of the bride price. Considering the length of Zhang and Liu’s marriage and their standard of living during that time, the Court ordered Liu to return 32,000 Chinese yuan of the bride price. Moreover, the court found that Liu’s dowry was Liu’s personal property and Zhang had no interest therein.  Available here



Hamel v. Hamel Supreme Court of Rhode Island (1981)

Divorce and dissolution of marriage

Petitioners, husband, and wife filed cross-petitions for legal separation rather than an absolute divorce where the matrimonial bonds are completely broken. The Family Court dismissed both petitions because the husband’s stated reason for seeking legal separation was “irreconcilable differences.” The text of the statute ordaining legal separation seemed to require that it be an interim measure pending the reconciliation of the parties. Legal separation because of irreconcilable differences therefore, on its face, seemed to be an inconsistent proposition. The issue on appeal was whether irreconcilable differences could be grounds for a merely legal separation rather than an absolute divorce. The Supreme Court of Rhode Island ruled that based on the history of legal separation and legislative intent, a party can seek legal separation based on irreconcilable differences without needing to show that there is a possibility of reconciliation. Statutory text that seemed to contradict this ruling by requiring a show of a possibility for reconciliation was precatory but not mandatory.



Sammataro v. Sammataro Supreme Court of Rhode Island (1993)

Divorce and dissolution of marriage

The General Master of Family Court granted custody of a child to the defendant because the plaintiff received public assistance. The issue on appeal was whether receiving public assistance was a legitimate criterion for the denial of child custody. In reversing the Family Court’s ruling for the defendant, the Supreme Court of Rhode Island reiterated the rule that any custody determinations must be based on the best interests of the child and delineated a non-exclusive test to determine the best interest of the child. The factors include, but are not limited to: (i) the wishes of the child’s parent or parents regarding the child’s custody; (ii) the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference; (iii) the interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest; (iv) the child’s adjustment to the child’s home, school and community; (v) the mental and physical health of all individuals involved; (vi) the stability of the child’s home environment; (vii) the moral fitness of the child’s parents; and (viii) the willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.



Congdon v. Congdon Court of Appeals of Virginia: Richmond (2003)

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

In this divorce case, the husband appealed the trial court’s decision to grant spousal support to the wife notwithstanding her adultery, based on the court’s finding that manifest injustice would otherwise result.  The appellant and the appellee were married for 20 years and had two children.  The appellant had a stable career in the trucking business and earned $250,000 per year and had assets totaling more than $6 million.  The appellee was the primary caretaker for the children and worked part-time as a receptionist earning $10 an hour.  She did not contest that she had an affair for at least five years during the marriage.  The court noted, however, that the evidence “portrayed the appellant  as a profane and verbally abusive man,” who frequented “strip joints and topless bars,” and frequently boasted and bragged about these experiences in lewd terms in front of the appellee and their children.  He was also verbally abusive to his children.  Several witnesses testified that “they had never once seen [him] show any affection or any kindness toward [his wife],” and that he “chronically complained” to the appellee and others about her “weight, appearance, housekeeping, and spending habits.”  The trial court explained that Va. Code § 20-107.1(B)the law precludes an award of support to any spouse found guilty of adultery, subject to narrow exceptions, including when the trial court determines from “clear and convincing evidence, that denial of support and maintenance would constitute manifest injustice, based upon the respective degrees of fault during the marriage or relative economic circumstances of the parties. The question before the court was whether the trial court committed a reversible error in stating that the statutory standard for deciding if a denial of support and maintenance constitutes a manifest injustice involved considering “either” the respective degrees of fault during the marriage “or” the relative economic circumstances of the parties.  In affirming the ruling of the trial court, the Court of Appeals held that the trial court erred, but also that it was a harmless error as it was supported by facts that satisfied the correct standard. The court determined that the proper standard for determining if a denial of spousal support would constitute a manifest injustice must consider “both” the comparative economic circumstances “and” the respective degrees of fault, i.e., the test was a conjunctive test rather than the disjunctive test used by the trial court.  Nevertheless, the Court of Appeals affirmed the ruling under correct test.  With respect to the relative degrees of fault, the Court of Appeals explained that adultery was not dispositive and that a reasonable factfinder could conclude that appellant’s severe and longstanding abusive conduct went beyond “mere incivility or petulance” and tipped the scales in appellee’s favor.  Moreover, the Court of Appeals affirmed the trial court’s finding of “extreme disparities” in the relative economic situations of the parties.  Consequently, the trial court erred in stating the standard for determining if a denial of spousal support would cause manifest injustice as requiring either economic disparities or fault instead of both factors, but the error was harmless as the factual findings addressed both factors under the appropriate standard.



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.



Dupre v. Dupre Supreme Court of Rhode Island (2004)

Divorce and dissolution of marriage

In this case, the Rhode Island Supreme Court held that a parent seeking to relocate out of the country with children in his or her custody need not make a showing that his or her reasons for relocation are “compelling.” Rather, the court cited the “time-honored axiom that the primary consideration and paramount concern in all matters relating to custody is the best interests of the child.” In determining the child’s best interests, requiring a parent to demonstrate that the reason for moving was compelling would overly burden a parent’s ability to relocate for legitimate reasons. Accordingly, the court held that the family court had incorrectly applied a “compelling reason” test in denying a mother’s motion to relocate with her children, failing to consider the children’s best interests. 



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.



F.N. v. S.M. High Court of Namibia (2012)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”



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.



Clayton v. Clayton Supreme Court of New Zealand (2016)

Divorce and dissolution of marriage, Property and inheritance rights

This case concerned the determination of what constitutes relationship property in a divorce proceeding and how trusts may affect this determination (e.g. if a sham trust is implemented to hide assets, therefore affecting a woman’s economic rights in a divorce).  The term “relationship property” is defined in the Property Relationships Act of 1976, the principles of which focus on the equality of spouses and that at the end of a relationship, any economic divisions should reflect equal contributions made by the couple during the relationship.  However, any property constituting “trust property” is not available for division under the PRA.  In this case, the parties had been married for 17 years with two daughters.  During the marriage, the respondent-husband had become a successful business owner and set up several discretionary trusts.  The trusts ostensibly related to the business he had established.  The appellant-wife had assisted with her husband’s business ventures and was the main childcare provider during their marriage.  The Court concluded that, in this case, the powers under a trust deed constituted “property” under the PRA.  In applying the two-stage approach of section 182, the Court concluded that one of the discretionary trusts settled during the Clayton’s marriage constituted a nuptial trust under §182 of the Family Proceedings Act 1980 because of its connection to the marriage.  The court found that the “nature of the assets is not determinative of whether the settlement is nuptial or not,” and that a settlement “made for business reasons” and containing business assets can be a nuptial settlement.  The New Zealand Women’s Law Journal described this as a “decision that provided a much-needed step towards a more equal recognition of the traditional economic disadvantages faced by women.”



Supaul v. Lalchand Supreme Court of Belize (2018)

Divorce and dissolution of marriage, Property and inheritance rights

The issues in the preliminary hearing for this case were (i) whether the parties were involved in a common law union and what the material dates of that union were and (ii) whether an agreement entered into between the parties barred the applicant from bringing her claim for maintenance and division of property.  The applicant alleged that the parties lived together as man and wife for eight years.  The respondent claimed the first two years involved a sexual relationship only and that they did not live as man and wife for the last four years of their relationship because the relationship was unstable.  He also contended that the parties had “more of a business relationship.”  Under Belize law, a “common law union” is a “relationship that is established when a man and woman who are not legally married to each other and to any other person cohabit together continuously as husband and wife for a period of at least five years.”   The court analyzed the evidence of the relationship and found the respondent’s evidence to be “lacking in credibility.”  The court found there to have been a common law union for eight years.



Vasquez v. Vasquez Supreme Court of Belize (2017)

Divorce and dissolution of marriage, Property and inheritance rights

The petitioner applied to court for dissolution of marriage on the ground of respondent’s adultery, which was granted in 2010.  The petitioner then filed for maintenance for herself and their children as well as for other miscellaneous amounts for loans and medical expenses.  The court granted maintenance, which was being garnished from respondent’s salary.  The respondent contested the continuation of these payments.  Under Belize law, upon divorce the court has discretion to order a husband to pay maintenance to his former wife in an amount the court may think to be reasonable for the remainder of her life.  The court ordered a continuation of monthly maintenance payments based on the “practice that maintenance is generally awarded on the basis of one-third of the joint incomes of the parties, less the wife’s income” in order to “supply the former wife with the necessaries, comforts, and advantages incidental to her social position.”  The claims for loans and medical expenses were dismissed.



Gandhi v. Perak, et al. Federal Court of Malaysia (2018)

Divorce and dissolution of marriage, Gender discrimination, International law

The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW.  The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam.  In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.



Barclay v. Digen Supreme Court of Liberia (2011)

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

Upon divorce, the husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her maiden name solely for herself. The court held that: (a) there is no legal significance of a woman choosing to use her husband’s surname; it does not affect the right of a woman to own property while married; (b) a woman can purchase property in her maiden name during marriage; (c) unless freely consented to, property which is owned solely by a husband’s wife cannot be controlled by her spouse.



B. v. A., BGE 126 IV 124 Supreme Federal Court (2000)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A. met B. in St. Gallen in 1993. A. had to leave Switzerland at the end of 1995. They married in April 1996 in Ghana. In August 1996, A. was able to return to Switzerland. After his return, the relationship gradually became more oppressive and menacing toward B., for example, by pressuring B. for sexual intercourse.  B. gave in to his demands when she could no longer stand the intimidation. B. separated from A. on March, 28, 1998, and on July 20, 1998, A. was prosecuted for threatening, assaulting, and coercing B. The district and appellate courts in the Canton of St. Gallen sentenced A. to prison and condemned him to heavy penalties, including both imprisonment and damages. A. appealed to the Federal Supreme Court, under the claim that he was the husband of B. and not a rapist who lacked entitlement to approach B. The Supreme Federal Court rejected A.’s appeal.



Public Prosecutor of Canton Ticino v. A.A., 6S. 292/2004 Supreme Federal Court (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A.A. and B.A., while estranged spouses but not having applied for legal separation, were living in the same house in two separate apartments, with A.A. paying for the rental of both units. The decision to live in the same house was accepted by B.A., as it allowed them to continue helping each other with everyday tasks and to oversee the children’s education together. On June 7, 2003, B.A. alleged that the two engaged in intercourse without B.A.’s consent. On May 24, 2004, the Canton Ticino Public Prosecutor indicted A.A. before the Court of Riviera for alleged sexual violence against his wife, B.A. On July 2, 2004, the Canton Ticino Court of Appeal dismissed the indictment of the Public Prosecutor, as B.A. had withdrawn the allegation of sexual violence committed against her by her husband. The Public Prosecutor appealed the decision before the Supreme Federal Court. Under Swiss law, sexual violence against a spouse can only be prosecuted where the victim has made allegations. The Supreme Federal Court, on the basis of the evidence collected in the course of the proceeding, and as argued by the Public Prosecutor, stated that the fact that the spouses were living in two separate apartments was not material, as they were nevertheless maintaining a “communion of life” status, which could be inferred from their mutual assistance, meals together, continued feelings of affection, and occasional sexual intercourses. Therefore, on the basis of such evidence, the Supreme Federal Court stated that the decision of the Court of Appeal to dismiss the indictment of A.A. was legitimate and rejected the Public Prosecutor’s appeal.



X. v. Y., BGE 131 IV 167 Supreme Federal Court (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

Y. was married to X. until 1993. After the divorce, he continued to live with his former wife until March 2001, when he moved into his own flat. The former spouses continued their sexual relationship until September 2, 2001, after which they finally separated. From September 21 to October 12, 2001, Y. sent X. a large number of messages demanding that she perform certain sexual acts and threatening her. X. finally consented to the sexual acts demanded - including sexual intercourse and filming a sex tape. X. was forced to film pornography and suffered sexual abuse for about two months. Initially, the Winterthur Court condemned Y. to sixteen (16) months in prison for sexual coercion and rape. On appeal, the prison sentence was reduced to four (4) months, but Y.’s culpability was firmly reiterated. Y. appealed to the Supreme Federal Court, claiming that the threats to X. were not as severe as the prosecution had claimed. This appeal was rejected by the Supreme Federal Court, and the sentence of four (4) months remained in place.



Application by Court of First Instance to Annul a Certain Civil Law Constitutional Court (2016)

Divorce and dissolution of marriage, Property and inheritance rights

During a divorce proceeding, a matter arose regarding contribution and participation receivables, particularly the application of the Turkish Civil Code, Number 4721, Article 219, Sub-Article 2, Sub-Paragraph 5, dated November 22, 2001, which provides that the income from a personal asset is such spouse’s acquired asset. The court of first instance held that this provision violated the Constitution, Articles 2 and 35, because it unreasonably interfered with property rights and would, therefore, prevent civil marriages. The Constitutional Court, considered the Constitution, Article 35, which simply states that property rights are universal, and this right shall only be limited if public welfare requires. The Court also considered Article 13, which states that fundamental rights and freedoms may be limited only by statute, so long as the core of such rights, as well as other relevant constitutional provisions, are not affected. The Court also noted that Article 41 establishes the state’s positive obligation to promulgate regulations to protect and preserve the institution of the family. The Court held that, while the law in question limits property rights, this limitation does not affect the core of the right and is based on justifiable purposes, and the law in question does not violate the Constitution. The justifiable purpose is protecting families, and especially women, by requiring income from a personal asset to be mutually distributed, thereby promoting public welfare.



Application by Court of First Instance to Annul the Surname Act in Part Constitutional Court (2012)

Divorce and dissolution of marriage, Gender discrimination

In 2001, a mother divorced her husband, who was her child’s father, and the court of first instance granted custody to the mother, who then filed a lawsuit to change the child’s name and surname because both names were causing the child problems in his social environment—his friends were making fun of him. The Surname Act provides that the husband, as the leader of the marriage union, shall choose the child’s surname, even after divorce. The court of first instance held that this provision violated the Constitution’s equality principle and requested that the Constitutional Court annul the provision.  The Constitutional Court unanimously agreed, holding that the Constitution, Article 41, establishes the equality between husband and wife; moreover, the right to choose a surname for the child was an element of custody. The Court noted that the Turkish Civil Code, Number 4721, had introduced material changes in husband–wife equality, and more importantly, articles that did not comply with the equality principle had been excluded from the law, such as the husband being the leader of the marriage union. The Court referenced the European Court of Human Rights, which held that any differing treatment based on gender, except for valid reasons, breaches the non-discrimination principle. According to the Constitutional Court, the wife and the husband were in the same position regarding their rights and obligations, both during marriage and in divorce; therefore, granting the right to choose the child’s surname exclusively to the father would have violated the Constitution’s equality principle.



RH 2004:48 Svea hovrätt (Svea Court of Appeal) (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence

During a four-month period, A.H. made several unlawful threats (Sw. olaga hot) toward his ex-wife. The question in the Court of Appeal was whether the unlawful threats constituted repeated violations of the ex-wife’s integrity and whether the threats were meant to seriously harm her self-esteem. The Court of Appeal acknowledged that the parties were going through a divorce, where both parties expressed hurtful words to one another.  As such, the Court of Appeal held that the unlawful threats did not constitute a violation of a woman’s integrity (Sw. kvinnofridskränkning).



AP 2537/09 – Dalibor Perić Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

In 2004, the common-law marriage between Dalibor Perić (“Perić”) and his wife was terminated.  Perić’s ex-wife was granted custody of their two-year-old son, and Perić was ordered to pay BAM 100 per month in child support.  Over the next three years, Perić never paid child support, he verbally abused and physically assaulted his ex-wife and her parents resulting in two domestic violence charges.  In addition, he beat the child on several occasions.  In 2007, the mother of the child filed a motion to terminate Perić’s parental rights.  Two years later, the Basic Court in Bijeljina stripped Perić of his parental rights pursuant to Article 106 of the Family Law of the Republika Srpska.  The County Court of Bijelina dismissed Perić’s appeal and upheld the lower court’s ruling.  Perić then appealed to the Constitutional Court of BiH, arguing the ruling of the County Court violated his right to a fair trial and right to private and family life.  Because no draft decision received a majority vote, the Constitutional Court of BiH dismissed Perić’s appeal.

Decision available in English here.



2013 (Ju) No. 233 Supreme Court of Japan (2014)

Divorce and dissolution of marriage, Gender discrimination

A mother, on behalf of her infant child, filed a lawsuit for a declaratory judgment for absence of parent-child relationship with the appellant––a man to whom the mother was married when the child was born.  The request for the judgment was based on the fact that a DNA test result showed that, with 99.99 percent probability, the infant was a child of a different man, with whom the mother was having an affair.  By the time of the trial, the wife and the child had left the appellant to live with the child’s biological father.  Article 772 of the Japanese Civil Code, in general, presumes a man to be the father of a child if the man is married to the mother of the child at the time of conception.  While Article 774 allows the husband to file a proceeding to rebut such a presumption, the wife or the child does not have standing to initiate such a proceeding.  The Supreme Court, stressing the importance of maintaining legal stability pertaining to familial status, found that the facts that (i) there was scientific evidence that clearly denied a biological father-child relationship and that (ii) the child was currently raised––without any problem––by the biological father does not negate the presumption of the father-child relationship under Article 772 of Japanese Civil Code, as the importance of maintaining the legal stability pertaining to familial status would not be undermined by such factors.  Therefore, the Supreme Court found that there was no legal ground to deliver the requested declaratory judgment.



2017 (Ju) No. 2015 Supreme Court of Japan (2018)

Divorce and dissolution of marriage, International law

This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old.  Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, whose life was still based in the U.S., petitioned for the return of the son to the U.S.  A family court in Tokyo granted the petition.  However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time.  Subsequently, the father requested habeas corpus relief seeking release of the child.  The High Court dismissed the request.  In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case.  In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions.  The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother.  Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the United States, and that there was no special circumstance in which removing the child would be significantly unjust.  This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.



Mutombo v. Mutombo High Court for Zambia (2012)

Divorce and dissolution of marriage

The petitioner filed a petition for the dissolution of his marriage. Under Zambian law, there is only one ground for divorce: that the marriage has broken down irretrievably. A marriage has irretrievably broken down when there is no chance of the parties resuming cohabitation. The High Court observed that, on the facts, the conduct and lifestyle of the parties, especially during the period when the suit’s hearing was pending, was utterly inconsistent with that of a couple whose marriage has irretrievably broken-down. In particular, the parties still continued to enjoy family life, the petitioner was still supporting the respondent financially, and the parties continued to enjoy a sexual relationship. In this light, the High Court rejected the submission that there was no mutual love between the parties and concluded that the respondent had not behaved which would preclude the petitioner from reasonably being able to live with the respondent. Accordingly, the High Court dismissed the petition. 



Ponde v. Bwalya Supreme Court for Zambia (2016)

Divorce and dissolution of marriage, Property and inheritance rights

The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.



Joan v. Hodgson High Court for Zambia (2011)

Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (2008)

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

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage.  Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes.  She was always the primary caregiver of the children.  After forty years, the marriage broke down irretrievably.  Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension.  In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court.  Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely.  The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages.  In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid.  The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW.  It held that the two provisions are patently discriminatory, unfair, and not justifiable.  In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment.  The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”



In the Marriage of Pavey Family Court (1976)

Divorce and dissolution of marriage

Mr. and Mrs. Pavey were married in 1945 and lived in the same matrimonial house for more than thirty years. Mr. Pavey had provided Mrs. Pavey with housekeeping money for the matrimonial home, but ceased this practice after an incident in April 1974. As a result, Mrs. Pavey successfully applied to the Magistrates’ Court for a maintenance order against her husband. The marriage continued to deteriorate, and Mrs. Pavey applied to the Family Court of Australia for dissolution of the marriage in 1976, which the Court denied. Mrs. Pavey then appealed to the Full Court of the Family Court of Australia, which allowed the appeal. The Court found that the lower court had erred in finding that the marital relationship had not broken down such that dissolution was appropriate. Extending the reasoning in In the Marriage of Todd (No. 2), the Court held that there are several signs indicating a close marital relationship, such as “living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship.” However, the Court also found that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before and after the separation. Thus, the Court found that the fact that Mr. Pavey had been ordered to make maintenance payments demonstrated that marriage had broken down, even though both spouses continued to live in the matrimonial home and perform certain chores for each other.



In the Marriage of Todd (No. 2) Family Court of Australia (1976)

Divorce and dissolution of marriage

Mr. Todd and Mrs. Todd were married in 1960 and had two children. On 23 November 1974, Mrs. Todd left the matrimonial home with the two children, but all three moved back in on 21 April 1975, where they continued to reside until the parents decided to divorce in 1976. The application for divorce under the Family Law Act 1975 (Cth) (the “Act”) initiated in the Family Law Division of the Supreme Court of New South Wales was transferred to the Family Court of Australia. On the question of divorce, one key issue was what constituted “separation” and “separated and apart” for a continuous period of not less than 12 months. The court held that this marriage had irretrievably broken down since 23 November 1974, and a continuous separation for 12 months the application for divorce had been satisfied. The Court held that “separation” was broader than mere physical separation and concerned the martial relationship itself. According to the Court, “Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.” In this case, the Court held although the spouses moved back in together in April 1975, they never restored the marital relationship.



Sentencia TC/0070/15 Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Mrs. Angela Merici Mendoza Minier challenged the constitutionality of Article 35 of Law number 1306-Bis published on May 21st, 1937, which provided that a divorced woman could not marry within 10 months after the divorce. Mrs. Angela argued that Article 35 contravened the gender equality provision provided in Article 39 of the Constitution because the 10-month waiting period to remarry did not apply to men. Article 35 thus conferred a privilege only to men. The attorney-general disregarded the action on the basis that the petitioner lacked legitimate interest. However, the Constitutional Court determined that as a woman, Mrs. Angela could be affected by Article 35 and ruled that she therefore had a legitimate interest in challenging Article 35. The Constitutional Court subsequently admitted the action and nullified Article 35 on the basis that it no longer fulfilled its aim to prevent a woman from remarrying when already pregnant with her former husband’s child because it could have negative consequences for the child or the newly formed couple. As technology now allows women to know their state of pregnancy at an early stage, the restriction is no longer needed. Moreover, the Constitutional Court acknowledged that it is a woman’s decision to remarry, pregnant or not. 

 

La Sra. Angela Merici Mendoza Minier desafió la constitucionalidad del artículo 35 de la Ley número 1306-Bis publicada el 21 de mayo de 1937, la cuál establecía que una mujer divorciada no podría casarse por un período de 10 meses posteriormente a un divorcio. La Sra. Angela sostuvo que el artículo 35 era contrario a la disposición de igualdad de género garantizada en el artículo 39 de la Constitución porque el período de espera de 10 meses para volver a casarse no se aplicaba a los hombres. Ella propuso que el artículo 35 confería un privilegio único a los hombres. El fiscal general ignoró la acción basándose en que la peticionaria no tenía un interés legítimo en la acción. Sin embargo, el Tribunal Constitucional determinó que, como mujer, la Sra. Angela podría verse afectada por el artículo 35 y dictaminó que, por lo tanto, esto era un interés legítimo suficiente para impugnar el artículo 35. Posteriormente, el Tribunal Constitucional admitió la acción y anuló el artículo 35 sobre la base de que no cumplía su objetivo inicial de evitar que una mujer se volviera a casar mientras ya estaba embarazada con el hijo de su ex esposo, lo cual podría tener consecuencias negativas para el niño o para la pareja recién formada. Como la tecnología ahora permite a las mujeres conocer su estado de embarazo desde una etapa temprana, dicha restricción ya no es necesaria. Además, el Tribunal Constitucional agregó que es una decisión personal de la mujer volver a casarse, embarazada o no.



Advisory Opinion No. 2008/64 Fatwa & Contracts Department (2008)

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination

This legal advisory opinion found that a divorced woman is not entitled to the typical social allowance provided to married individuals by their employers.  The woman, unnamed in the opinion, applied for the allowance because she has custody of her minor son.  The opinion states that the allowance can be only provided to married women with children whose husband is unemployed, jobless, or incapacitated.  A divorced woman cannot benefit from this support even if she is the sole custodian of her child.  Nonetheless, this Advisory Opinion requests that the Qatar Legislator revisit this situation a “with a view to cure the unreasonable position of a divorcee employee who has children, because her situation resembles the situation of a widow in jurisprudence.”



Nxumalo v. Ndlovu Supreme Court (2011)

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

The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.



C.M. v. B.M.B. Court of Appeal of Ghent (2003)

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

Following an assault by her husband (which was interrupted when he sustained a heart attack and had to be hospitalized), a woman temporarily moved into a small studio above the shop she rented and in which she worked. She brought divorce proceedings shortly after the assault, which resulted in a lower court restraining order on both parties. The husband was to be allowed to stay in the couple’s family house on the theory that this was the best solution financially and because the restraining order would make it impossible for the man to live in the studio in the rented commercial property as the wife worked there on a daily basis. On appeal, the wife requested that she be allowed to live in the family house, while the husband claimed that he should be allowed to stay there given his more limited financial means (a pension allowance). The husband did not deny the violence, but minimized the facts, while the wife claimed that there were already tensions before the assault and that her husband’s heart attack had saved her life.  The Court of Appeal held that despite the absence of other witness declarations, the existence of a medical certificate supporting the woman’s claims as to the assault provided sufficient evidence of violence by the husband. The fact that the violence only occurred once did not change this and nor did the outcome of the pending criminal investigation. The Court held that, in accordance with the law of 28 January 2003 on domestic violence, the family home was to be assigned to the victim of such violence as no exceptional circumstances existed here to decide otherwise, despite an alleged imbalance in the financial means of the parties. The request by the wife for a maintenance allowance to cover the husband’s rent was rejected because the husband did not prove that the wife had a higher income and that the divorce proceedings would likely lead to financial compensation by the wife to the husband for the use of the family house.



B.M. v. R.C. Constitutional Court (2009)

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

Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined. The Civil Code was amended from mid-1976 by the Law of 14 July 1976 to remove this discrimination but contained transitional provisions requiring the old rules to continue to apply under certain circumstances. In the case at hand (in which the women failed to make a declaration within the old deadline), the Constitutional Court was asked if the old provisions still applied for marriages entered into before the amendments became applicable and dissolved after that date. The first court ruled that the deadline no longer applied (as there was no basis for it because men and women acquired equal rights to manage matrimonial property in 1976), but it took successive appeals, culminating in an appeal before the Belgian Supreme Court, to confirm this and annul the relevant transitional provisions.



Public Ministry and Civil Party Kakonya Minamu v. Bahige Kanywabahize & Kahamire Nzigire Court of Greater Instance of Bukavu (1989)

Divorce and dissolution of marriage

Tthe “Civil Party” brought a case against his “ex-wife” and Bahige Kanywabahize “Bahige”, or together with the ex-wife, the “Accused”, for abandoning the conjugal home and adultery.  The Civil Party and his ex-wife cohabitated as a married couple until she decided to leave their home, obtained a divorce from the Tribunal for the City of Bukavu, and decided to get married to Bahige.  The Civil Party claims his ex-wife abandoned him with the intent to marry Bahige.  The Civil Party seeks customary reimbursement of the dowry he paid to his ex-wife (6,000 zaires, a goat, two cases of beer, a case of Fanta, a can of a local drink called Kasiksi and a hoe) and damages of 150,000 zaires from the Accused under the Congolese Family Code.  The Tribunal determined the Civil Party was not entitled to the customary reimbursement of dowry since his spousal rights ceased upon divorce; adultery and abandonment of the conjugal home occurring subsequent to a duly obtained divorce are not subject to sanction. (Available on pages 144-46 on linked site.)



Public Ministry and Civil Party Mawazo Safi v. Mewnyibamba Kabale & Passy Nyakura Court of Greater Instance of Bukavu (2001)

Divorce and dissolution of marriage

The “Civil Party” brought allegations of adultery against her husband and the “cohabitant”, claiming her husband abandoned her to live with the cohabitant despite her earlier marriage with her husband in 1980.  The Civil Party and her husband had three children before he moved away. A dowry was regularly paid on the marriage throughout and no party contests the 1980 marriage.  As such, the marriage could generally qualify under Congolese law as a ‘monogamous customary marriage’ under the law of November 30, 2000, which does not require the date of the marriage or any registry number to be filed with the State.  The Civil Party’s husband and his cohabitant claim the civil party knew and authorized their cohabitation because she refused to relocate with her husband when his work required him to do so and that she visited them at their home, all of which she contests.  Despite the lack of contest by any party to the prior marriage and recognition that a monogamous customary marriage exists here, the Tribunal suspended the case until the marriage was registered because Article 380 of the Congolese Family Code requires a ‘monogamous customary marriage’ to be registered before either party can exercise rights in court. (Available on pages 136-137 on linked site.)



M.B. v. D.W. Kentucky Court of Appeals (2007)

Divorce and dissolution of marriage, Gender discrimination

The new husband of a divorced mother of three children filed a petition seeking to adopt the remaining minor child without the consent of her biological father, effectively terminating her parental rights. After the divorce, appellant-father underwent gender reassignment surgery and now lives as a woman. The children discovered this when they visited their father in Florida and told her afterward that they no longer wanted to see her. The minor child testified that she did not want to see her father, wants to be adopted by her stepfather, and is in psychological counseling. The Hardin County Circuit Court granted the petition, finding that the children suffered psychological harm because they were not adequately prepared for their father’s transition. The Court of Appeals of Kentucky affirmed, largely on the justification that circuit courts have broad discretion in determining whether, in parental rights actions, termination is in the child’s best interest due to abuse or neglect. The Court of Appeals and trial court both noted that the appellant's sex reassignment was not the basis for terminating her parental rights. They explained that she failed to prepare her children or ex-wife at all for her transition, her minor child suffers from ongoing psychological harm, she did not meet her financial obligations for her minor child’s medical care, and her minor child wanted to be adopted by her stepfather.



2013 (O) No. 1079 Supreme Court (2015)

Divorce and dissolution of marriage, Gender discrimination

The plaintiff, who had divorced her former husband and remarried seven months later, sued the State claiming that she had suffered mental distress due to a provision in the Civil Code which barred women from remarrying until six months after the dissolution or rescission of her previous marriage. Both the District Court and the High Court dismissed the plaintiff’s argument, saying that the restriction was not necessarily unreasonable because it was meant to avert confusion over the paternity of any children born immediately after a divorce. The Supreme Court affirmed in part, holding that the provision violated the Constitution only to the extent that the restriction exceeded 100 days, because 1) the Civil Code already provided that a child born more than 200 days after the formation of a marriage or less than 300 days after the dissolution/rescission of a marriage would be presumed to have been conceived within the marriage, and 2) advances in medical technology and societal changes made it difficult to justify a restriction lasting beyond 100 days. However, the Supreme Court also affirmed the District Court and High Court in finding that the State was not liable in this case for failing to abolish the regulation, as this did not constitute an exceptional case that might incur liability under the State Redress Act. Shortly after this judgment, the Civil Code was amended to decrease the six month waiting period to 100 days.



Individual Application of Hayriye Özdemir Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Ms. Özdemir had a child with her husband. After the finalization of her divorce and custody proceedings, gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance accepted the lawsuit on the grounds that the Constitutional Court had invalidated Article 4 of Surname Act, which said that a “the child would carry the surname that the father chose or will choose even if the custody of the child has been transferred to the mother following the divorce.” However, the Court of Appeals reversed the lower court’s decision citing Article 321 of the Turkish Civil Code No. 4721 which states that a child should carry the family name of the father, that a child’s name could only be changed in the father consented or if the child, when he/she reached lawful age, duly petitioned for such a change, and that the transfer of custody to the mother does not give the mother power to change the child’s last name. The Court of First Instance complied with the appellate court’s decision and rejected the lawsuit, leading to Ms. Özdemir’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for re-trial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özdemir the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of the Constitution. 



Individual Application of Nurcan Yolcu Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Ms. Yolcu had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision upon appeal, which led to Ms. Yolcu’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court accepted Ms. Yolcu’s claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Yolcu the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that same Constitution. 



Individual Application of Gülbu Özgüler Constitutional Court (2014)

Divorce and dissolution of marriage, Gender discrimination

Ms. Özgüler had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance rejected her petition on the grounds that the transfer of custody to the mother was not grounds for changing a child’s last name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision. After Ms. Özgüler’s individual application, the Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özgüler the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that Constitution. 



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.



Tibenderana v. Al-Torki High Court at Kampala (2015)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner father filed for divorce from the respondent mother and custody of their child.  After the birth of their child in 2007, the respondent left the matrimonial home without returning.  After over two years of absence, the petitioner filed for divorce.  The two elements of desertion are the actual absence of a spouse and their intent to abandon the union.  In this case, the respondent travelled internationally with the child at the petitioner’s expense and refused requests to move to Uganda once she obtained citizenship.  In 2011, she moved back to Uganda.  In 2012, the respondent requested an Islamic divorce, which she was granted, citing problems with the government of Saudi Arabia.  After the Islamic divorce, the parties continued to cohabitate with petitioner as the sole provider for the family, but the marriage was over.  Respondent moved to the United Kingdom for the child’s education and the petitioner paid the costs.  The petitioner also complained of physical assault, which he did not report to the police to protect his reputation.  He submitted documentation of his payments for living and education expenses, their marriage, the Islamic divorce, and his unanswered inquiries to respondent about their child.  The court agreed that these facts demonstrated an irretrievably broken marriage.  Citing the Children Act, which requires courts primarily consider the best interests of the child in custody determinations, the court granted custody of the child to the petitioner because the petitioner functioned as the sole provider for the family.



S. v. S. High Court of Namibia (2015)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Plaintiff filed for divorce from her abusive husband after he threatened to kill her. Under Namibian law, before a judge can issue a final divorce decree, the plaintiff must ask the defendant to restore his or her conjugal rights. This process effectively requires the filing spouse to give the other party, in this case an abusive husband, a chance to re-enter the marital home to restore his/her conjugal rights. The High Court of Namibia (“High Court”) recognized the danger of applying this requirement in domestic violence cases, where the respondent may use the judicially-mandated restitution of conjugal rights as an opportunity to access and further abuse the filing spouse.  In light of this risk, the High Court held that a spouse who files for divorce based on acts of domestic violence is exempt from the restitution of conjugal rights requirement.  



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.



Madame H.T. v. Monsieur Y.K. Supreme Court of Mali (2007)

Divorce and dissolution of marriage

Witnesses testified that Madame H.T. insulted her husband’s co-wife and mother in law. The Appeal Court granted divorce to Monsieur Y.K. on the sole basis that by insulting his mother his first wife had harmed his husband honor and dignity and made marital life impossible. However, quarrels between co-wives do not characterize a serious insult in a polygamous marriage. Moreover, by asking for divorce from the first wife only, the husband committed a serious injustice and violated his duty of impartiality with his wives. Additionally, insults directed at the husband’s mother do not constitute a legal basis for divorce, according to the Code des Mariages et Tutelles (Code of Marriage and Tutelage). Indeed, the Code only considers insults directly addressed at the husband as a basis for divorce. The Court held that such insults were not proved in this case and could neither be inferred from the behavior of Madame H.T. with her husband’s co-wife and mother in law, nor from her confession of having insulted her husband’s co-wife.



Sir Domtinet Bolngar v. Madam Nalem Louise Supreme Court of Chad (2005)

Divorce and dissolution of marriage, Property and inheritance rights

Sir Domtinet Bolngar brought a divorce claim to the civil tribunal of N’jamena on the basis of the prolonged rupture of their joint life and adultery committed by his wife. The Court pronounced a shared fault divorce and ordered an equal split of the couple’s joint goods. The Court of Appeal of N’jamena partially reversed the court’s decision and held that the divorce was exclusively caused by Sir Domtinet Bolngar‘s fault since the adultery of Madam Nalem Louise was never proven. The Court also awarded 3 million in damages to Madam Nalem Louise. Sir Domtinet Bolngar appealed the decision claiming he caught his wife red-handed at 5 am and that judges fail to assess the prejudice that he suffered. However the judges of the Supreme Court held that a simple narration of the facts did not constitute sufficient proof to charge Madam Nalem Louise with adultery, and therefore charged Sir Domtinet Bolngar with the court fees.



Monsieur A.T. v. Madame A.D. Supreme Court of Mali (2004)

Divorce and dissolution of marriage

Both parties were committed to each other in a monogamous marriage. This commitment entails for the wife and husband multiple obligations. Among them, the obligation of cohabitation; the wife must live with her husband and her husband must welcome her. In this case, the husband granted his wife authorization to visit her parents. While she was away, he introduced another woman into his home. Following his wife refusal to come back, he demanded a divorce. The Appeal Court of Kayes held that the husband had broken his monogamous commitment and that the wife’s decision not to go back to her husband’s home until the other woman had left did not qualify for desertion. Hence the divorce at the wife’s tort was not granted. Rejecting this analysis, Monsieur A.T argued in front of the Supreme Court that bigamy cannot be presumed and was never proven and that a presumed bigamy did not exempt the wife from her duty of cohabitation (derived from the Code of Marriage and Tutelage). The Supreme Court held that by marrying a second wife without the express agreement of his lawful wife, the plaintiff had broken the rules of monogamous marriage. As a result, the Court Appeal gave sufficient legal basis to its decision. Moreover, monogamous duties should not be imposed to the wife once the husband had broken his commitment. Conditioning her return to a departure of the other woman did not constitute a desertion. Consequently the Supreme Court ruled in favor of the wife and rejected the divorce request. This case protects women married under the monogamous regime and counterbalances the strong requirement of cohabitation by ensuring that no psychological violence will be endured by having to live under the same roof as another wife.



Monsieur G.A. v. Dame Z. Supreme Court of Benin (1973)

Divorce and dissolution of marriage, Gender-based violence in general

Monsieur G.A. requested a divorce for his wife’s “desertion of the marital home.” His wife pleaded that her husband and husband’s son mistreated her and her children because they believed she had committed adultery, making it impossible for her to stay in the home. She requested damages for raising their common children alone. The first court rejected her claim for not stating a claim, and awarded her husband a divorce for her desertion of the marital home. But, the court also granted her 141,000 Fr as alimony. She appealed the case. The Court of Appeal of Cotonou (Chamber of Local Law) held that the adultery was not proven (based on rumor) and acknowledged the violence she suffered at the hands of her husband’s son. She was hence awarded 90,000 Fr in damages. Monsieur G.A. took the case to the Supreme Court. He claimed that his wife disobeyed him in refusing to follow him to a new place after he was transferred for work. He also withdrew his request for divorce and asked for his wife to return home with him. The Court relied on evidence that the husband presented himself: a letter where his mother-in-law asked him to stop his son from beating up her daughter and grandchildren. The Court held that in such a case custom rules allow the wife to leave the marital home. Moreover, the husband did not prove that he changed the conditions that drove her from their house. Consequently, the Supreme Court rejected the plaintiff’s claim, ordered him to bear costs, and finalized the divorce.



Mohd. Ahmed Khan v. Shah Bano Begum Supreme Court of India (1985)

Divorce and dissolution of marriage, Gender discrimination

Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum 3000 rupees as mahr (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the iddat period (a period of 3 months that a Muslim woman has to observe before she can remarry after her divorce). Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at 179 rupees per month by the High Court in a revision application. Mr. Khan appealed to the Supreme Court in 1985 and the Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period.



Quartson v. Quartson Superior Court of Judicature (2012)

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

Ms. Quartson filed for divorce, seeking that Mr. Quartson vacate the home they shared during the marriage. Mr. Quartson solely funded the construction of the house, but Ms. Quartson was the sole supervisor of the home’s construction, ensuring that it was built satisfactorily and taking care of their three children while he was away working as a seafarer. Based on these facts, the Superior Court overturned a trial court decision granting the home to Mr. Quartson, instead holding that because Ms. Quartson ran the household and supervised its construction while her husband was away, she should be entitled to a share of the home’s value. Although there may be circumstances that demonstrate clear evidence that a spouse is not entitled to the property, the Court also held that such circumstances did not exist in the present case. The Court found that Ms. Quartson had interest in the property, and granted her the home.



Amponsah v. Nyamaah Superior Court of Judicature (2009)

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

Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”



Esseku v. Inkoom Superior Court of Judicature (2012)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.



S.Y. contre T.M. Tribunal de grande instance Ouagadougou (1999)

Divorce and dissolution of marriage

A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).



T.T. M. contre T.M. Tribunal de grande instance Ouagadougou (1999)

Divorce and dissolution of marriage

A Burkinabe woman (T.M.) sought divorce from her Chadian husband (T.T.) on the grounds of adultery, abuse and abandonment, she also sought custody of their child. The divorce was granted in favour of T.M. in the court of Ouagadougou. The judge stated that in a divorce case involving spouses of different nationalities the governing law should be that of the common domicile of the spouses. In this case, the last common residence of the spouses was Chad. The Burkinabe judge applied the basic principle of Chadian divorce law that permits divorce for fault attributable to either spouse. The judge stated that the sole responsibility for the divorce lay with T.T. The judge went on to impose Burkinabe law as to custody granting custody of their child to T.M. T.T. was given visitation rights and was required to contribute child support towards the maintenance and education of the children



Case of Presumption of Biological Child for a Foreign Born Child. 2008Reu2020, 3283 Seoul Family Court (2009)

Divorce and dissolution of marriage

The Plaintiff (Husband) and the Defendant (Wife) married in 2004. The Defendant, initially from China, went to China on December 25, 2006 without informing the Plaintiff. The Defendant returned to the Republic of Korea on January 10, 2007 but lived with a friend rather than the Plaintiff. In March 2007, the Defendant discovered she was pregnant but did not inform her husband. The Defendant gave birth to the child in Hong Kong on August 12, 2007. After giving birth, the Defendant notified the Plaintiff that a Hong Kong birth certificate requires the father’s signature. The Plaintiff proceeded to travel to Hong Kong and signed the certificate. The Defendant-wife returned to Korea in September 2007 and proceeded to live with a friend. The Defendant attempted to keep in contact with the Plaintiff but the Plaintiff refused to maintain such contact. The Plaintiff proceeded to file a divorce claim in February 2008, alleging that “from December 2006, the contact with the Defendant was completely cut off.” The Defendant countered with her own divorce claim. The Seoul Family Court dismissed the Plaintiff’s divorce claim but upheld the Defendant’s claim, finding that the fundamental breakdown of the marriage lied with the Plaintiff. While the court noted that the Defendant was also to blame, the court emphasized the fact that the Defendant attempted to initiate contact with the Plaintiff after giving birth to their child but the Plaintiff refused to make any such effort in restoring the relationship. Thus, the court ordered the Plaintiff to pay the Defendant three million won as compensation with a five percent interest rate per annum under the Civil Act. Additionally, the court ordered the Plaintiff to pay 400,000 won per month in future child rearing expenses, despite the fact that the Plaintiff was not registered as the child’s father in the Republic of Korea’s family registry. Citing Article 844 (1) of the Civil Act, the court held that there is a presumption that the wife’s husband is the father when the wife gives birth during the marriage. In determining the amount of child rearing expenses, the court considered the age and rearing condition of the child, the age and occupation of the Plaintiff and the Defendant, as well as other circumstances.



Supreme Court Decision 2005Meu1689 Supreme Court of South Korea (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Plaintiff sought a divorce from the Defendant. Upon requesting approval of the divorce from the Defendant, the Plaintiff was slapped by the Defendant. Additionally, the Defendant physically confronted the Plaintiff on a separate occasion, resulting in fractures of the Plaintiff’s face and neck. Despite such physical abuse, the lower court found that the relationship between the Plaintiff and the Defendant did not reach a degree in which it was impossible to restore. On appeal, the Supreme Court reversed, finding that the use of violence in a conjugal relationship cannot be justified. In addition to emphasizing the severity of the Plaintiff’s injuries, the Supreme Court noted that the lower court should have reviewed in detail how the Defendant’s use of violence influenced the marital relationship, whether the marital relationship between the Plaintiff and the Defendant reached a point in which it was impossible to restore due to the loss of love and trust that should form the foundation of the marital relationship, and whether it would prove unbearable for the Plaintiff to remain in the relationship. Unless it can be proven in the affirmative that the parties can restore the relationship and it would not be unbearable for the Plaintiff to remain in such a relationship, the lower court should grant the Plaintiff’s claim for divorce. Thus, the lower court erred when it failed to examine these factors and the extent of responsibility between the Plaintiff and the Defendant. Consequently, the Supreme Court reversed the finding of the lower court and remanded.



2004 (Ju) No. 247 Supreme Court of Japan (2004)

Divorce and dissolution of marriage

The plaintiff husband filed for divorce arguing that his wife was impossible to live with due to her neurosis for cleanliness. The defendant wife refused to agree to divorce because she had a seven-year-old child who needed child support. The plaintiff dated another woman and was living separately from the defendant for two years and four months before filing for divorce. The Supreme Court refused to grant divorce because (i) the plaintiff destroyed family trust by dating another woman, (ii) the period of living separately was not long, (iii) their child was still only seven years old, and (iv) it would be difficult for the defendant who suffered from a neurosis to find a job to support herself.



J.Y. Interpretation No. 147 Constitutional Court of Taiwan (1976)

Divorce and dissolution of marriage

Article 1001 of the Civil Code provides that spouses have a “mutual marital obligation to cohabit” absent legally justifiable reasons for not cohabiting. The Court held that a husband’s taking of a concubine violates the “marital obligation of fidelity” and qualifies as a legally justifiable reason for the wife not to cohabit with the husband. Thus, the Court held that a husband’s taking of a concubine releases his wife from her marital obligation to cohabit, but only for the period during which he maintains the concubine.



Liu v. Zhu Court of Huilai County, Guangdong Province (2013)

Divorce and dissolution of marriage, Sexual violence and rape, Sexual harassment

The plaintiff Liu alleged that she had a illegitimate son with a Yang when she was working in Sichuan province. Soon after that, she was having another child with a Chen. Since Chen was not going to perform his duty as a father, Liu decided to give birth to the child and raise it herself. Several months later, Liu’s first son, Yang was introduced by a matchmaker to the respondent as an adopted son. Out of the strait situation Liu faces, she agreed. Several days later, the respondent Zhu proposed since the son is too naughty and needs his mother to look after him, it is better that Liu came along. Liu came and Zhu’s little brother asked Liu to marry Zhu, and they will pay her 100,000 as gift, but Liu need to take care of Zhu. Liu agreed. After the wedding, Liu found out the respondent was disabled and sit on a wheelchair, having no sexual capability. However, the respondent kept sexually harassing the plaintiff. Plaintiff argued that she was cheated to get married, and Zhu lacks sexual ability, therefore she sued for divorce. The court finds that although the marriage is facilitated by a matchmaker, the two have lived together for many years and have developed some feelings for each other. Plaintiff’s arguments are not supported by any evidence, thus are not considered by the court.


Wang v. Luo Court of Chaling County, Hunan Province (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The plaintiff alleged that she married the respondent in 2012 and had a son in the same year. However, the respondent is a male chauvinist and has a very bad temper. He often maltreated the plaintiff. Especially during the plaintiff’s pregnancy, the respondent urged the plaintiff to have an abortion. The abortion was not carried out only because they had no money at that time. Therefore, the plaintiff sought a divorce and to submit an Agreement of divorce to the court. The court found that since the respondent did not show up at the trial, the plaintiff could not prove the authenticity of the evidence. According to Article 32 of Marriage Law, the prerequisite of a divorce judgment shall be the certainty of the loss of affection between the couple. Since the plaintiff could not prove such certainty, the divorce was not allowed.


Phiri v. Zulu High Court of Zambia (2012)

Divorce and dissolution of marriage, Property and inheritance rights

After fifty-four years of marriage, Mr. Phiri divorced Ms. Zulu in 2006. She was the mother of his nine children, and they shared a matrimonial home on a farm. Throughout the course of the marriage, Mr. Phiri and Ms. Zulu acquired real property, comprising the farm, other residential houses, and a bar, as well as several vehicles. However, during the divorce proceedings Mr. Phiri sold many of the houses and gave two of the properties to his children as gifts. He kept the proceeds of the sales for himself. The local court of first instance ordered Mr. Phiri to surrender one of the houses, a shop, a tavern and a sewing machine to Ms. Zulu. Unhappy with the outcome, Mr. Phiri appealed to the Subordinate Court, which heard the matter de novo. The Subordinate Court came to the same conclusions as the local court, although it ordered Mr. Phiri to surrender an additional sewing machine and K 6,000,000, as compensation for the property sold during the divorce proceedings, although no valuation of the latter had taken place. Ms. Zulu appealed to the High Court, among other grounds, on the basis that Subordinate Court should have also taken into account her contribution to the marital home (the farm) and that an assessment of the sold properties (or monies from the sale thereof) should have occurred. The High Court held that because the farm was acquired and maintained through the joint efforts of the husband and wife, Ms. Zulu had acquired a beneficial interest in the farm. Accordingly, the High Court ordered a valuation of the farm and directed Mr. Phiri to pay with one-third of the value to Ms. Zulu as a lump sum. Moreover, reasoning that the K 6,000,000 payment, related to the marital property sold during the divorce proceedings, was awarded without any basis whatsoever, the High Court further ordered a valuation of such property, with Ms. Zulu to receive one half of the assessed value.



Mukinga v. Fuller and Others Supreme Court for Zambia (2008)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.



Sentencia Nº 145/14 High Court of Andalucía Labour Chamber (2014)

Divorce and dissolution of marriage

Mrs. Ana was denied a survivor’s pension because when her husband died they were already divorced. Normally, when a couple divorces and between the divorce and the death of the husband there is a period of more than ten (10) years, the ex-spouse does not have the right to a survivor’s pension. Nevertheless, as the ex-spouse was victim of physical abuse by her ex-husband during their marriage, this period of ten (10) years does not apply. As the ten (10) years period does not apply when there are physical abuses, the woman has the right to obtain the survivor’s pension even if she was divorced from her husband when he died. The decision of the High Court of Andalucía is to recognize the right of Mrs. Ana to a survivor’s pension even if she was already divorced when her husband passed away.

 

A la señora Ana se le negó la pensión de sobreviviente porque cuando su esposo murió, ya estaban divorciados. Normalmente, cuando una pareja se divorcia y entre el divorcio y la muerte del esposo hay un período de más de diez (10) años, el ex cónyuge no tiene derecho a una pensión de sobreviviente. Sin embargo, como la ex esposa fue víctima de abuso físico de su ex esposo durante su matrimonio, este período de diez (10) años no se aplica. Como el período de diez (10) años no se aplica cuando hay abusos físicos, la mujer tiene derecho a obtener la pensión de sobreviviente, incluso si se divorció de su esposo antes de la murte. La decisión del Tribunal Superior de Andalucía es reconocer el derecho de la Sra. Ana a una pensión de sobreviviente, incluso si ella ya estaba divorciada cuando su esposo falleció.



Midwa v. Midwa Court of Appeal of Kenya at Nairobi (2000)

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

A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.



Mtefu v. Mtefu High Court of Tanzania (1995)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.



Mohamed v. Seifu Court of Appeal of Tanzania (1983)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.



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.



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.



Moge v. Moge Supreme Court of Canada (1992)

Divorce and dissolution of marriage

The parties, Polish immigrants, divorced in Canada after approximately 25 years of marriage. The wife had a seventh grade education and no special skills or training. During the marriage, in addition to caring for their 3 children and the house, she worked evenings cleaning offices. After the separation, she was awarded custody of the children and received $150 per month spousal and child support and continued to work cleaning offices. The husband remarried in 1984 and continued to pay support to his former wife. She was laid off in 1987 and, as a result of an application to vary, her spousal and child support was increased to $400. She was later able to secure part-time and intermittent cleaning work. In 1989, the husband was granted an order terminating support. The trial judge found that the former wife had had time to become financially independent and that her husband had supported her as long as he could be required to do. The Court of Appeal set aside the judgment and ordered spousal support in the amount of $150 per month for an indefinite period. The matter was appealed to the Supreme Court of Canada to determine whether the wife was entitled to ongoing support for an indefinite period of time or whether spousal support should be terminated. The Supreme Court of Canada determined that spousal support should continue and that termination of spousal support, pursuant to sec. 17 of the Divorce Act, should consider the recipient’s disadvantaged economic status as a result of the marriage breakdown both at the time of breakdown and as it may continue, rather than a simple “sink or swim” policy premised on the wife’s having had sufficient time to become self-sufficient. This decision has provided considerable protection from impoverishment for recently divorced women.



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”.



Mensah v. Mensah Supreme Court of Ghana (2011)

Divorce and dissolution of marriage, International law, Property and inheritance rights

The petitioner filed for divorce and sought an equal share of assets acquired during the marriage.  At the time of marriage, neither party owned any property.  During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department.  The plaintiff also advised the respondent on property investments.  The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets.  The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets.  The Supreme Court affirmed.  Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets.  Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992."  Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property.  To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.



D.J. v. State Iasi Court of Appeal (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The court of first instance decided the divorce of D.B.N. and D.J. on the ground of common fault and placed the minor child in the custody of her father.  D.B.N. appealed the decision to the Isai Tribunal, and the appeal court decided to place the minor child in the custody of D.B.N., her mother considering this to be in the best interest of the minor. It explained that the fact that the parents of D.J. were taking care of the minor did not represent sufficient reason for placing her in his custody, as wrongfully held by the court of first instance. The Court of Appeal rejected the appeal of D.J. against the decision of the Iasi Tribunal based on the fact that the minor is attached to her mother and to the domestic violence of her father both against the mother and the minor child.



G.M. v. G.S. Bucharest Sector 2 Court of First Instance (2008)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following the divorce of G.M. and G.S., the later violently chased away the claimant and their minor daughter from the common domicile, acquired during their marriage. Due to these violent actions against his wife and their children, the court decided to re-integrate the claimant and to evacuate the accused from the common domicile until the partitioning of the common assets. The decision became final and binding for failure to appeal it. (full text decision on file with the Avon Global Center)



Aleem v. Aleem Maryland Supreme Court (2008)

Divorce and dissolution of marriage, Gender discrimination

Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland.  Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.”  “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.”  The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.”  It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does.  Applying Pakistani law, according to the court, would violate Maryland public policy.  The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife.  Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”



Castle Rock v. Gonzales Supreme Court of the United States (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Court held that a policeman could not be sued under 42 U.S.C. 1983 for failing to enforce a restraining order. Jessica Gonzales was granted a restraining order against her husband during their divorce proceedings. In violation of the restraining order, Gonzales's husband took her three children, and despite repeated efforts by Jessica to have the order enforced, the police took no action. During this time, Gonzales's husband killed the couple's three children. The Court reasoned that because Colorado law did not make enforcement of a restraining order mandatory, there was no individual right to its enforcement. This case was admitted before the Inter-American Commission on Human Rights (as Gonzales v. United States) and is awaiting a decision on the merits.



J.Y. Interpretation No.372 Supreme Court of Taiwan (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional.  To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses.  Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.



Porntip v. Panomprai Katesa Supreme Court of Thailand (2009)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Supreme Court ruled that a husband's adulterous behavior which caused his wife great mental pain and humiliation and led to a four-year-separation created appropriate grounds for the wife to file for divorce.



Uganda Association of Women Lawyers and 5 Others v. The Attorney General Constitutional Court of Uganda (2004)

Divorce and dissolution of marriage, Gender discrimination

The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex.  The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.  



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.  



Nandi v. Bobo High Court of Kenya at Nairobi (Nairobi Law Courts) (2006)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health.  The Court therefore dissolved the marriage.  (Kenya domestic law does not explicitly recognize marital rape.) 



Nkabane v. Nkabane High Court of Lesotho (1987)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman.   The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.



Theko v. Theko High Court of Lesotho (1982)

Divorce and dissolution of marriage

The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom.  The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.



Naturaleza de compensación económica en divorcio Tribunales Superiores de Justicia de Chile (2006)

Divorce and dissolution of marriage, Domestic and intimate partner violence

In this divorce proceeding, the court reiterated that in situations in which one of the two parents, most commonly the mother, stays at home and thereby forfeits the opportunity to develop a career and earn a living wage, she is entitled to economic assistance from her husband if the marriage ends. This was especially relevant in this case, given that the husband had previously abused his wife, and after initially leaving him, she was forced to return to the marriage for economic reasons.



Cour d'appel de Douai 1re chambre civile, 17 novembre 2008, No. 08/03786 Cour d'appel de Douai (Chambre Civile) (2008)

Divorce and dissolution of marriage

The Prosecutor appealed a marriage annulment received by a husband on the grounds that his wife had deceived him regarding her virginity. The lower court had granted this annulment citing the wife's consent to the annulment as proof of her belief that her virginity was an essential determinant of her husband's consent to marriage. The Court of Appeals granted the appeal and rejected the marriage annulment, stating that a lie that does not concern an "essential quality" is not good grounds for the annulment of a marriage, especially where the alleged deception focuses on the wife's virginity, the absence of which has no impact on married life. The alleged resulting violation of "mutual confidence" has no effect upon the validity of the marriage. Furthermore, the Court of Appeals stated that the marriage could not be annulled for a deception regarding the wife's virginity as this would go against the principles of public policy.



Cour d'appel de Rennes CT0011, 9 mai 2006, No. 634 Cour d'appel de Rennes (2006)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The family court awarded the marital home to Appellant's wife under Section 220-1 of the Civil Code, which provides that where one spouse threatens or perpetrates violence, the judge may rule that the couple should live apart, allocating the marital dwelling to the spouse who was not the perpetrator of the violence. Appellant appealed on the grounds that he had limited income, that the dwelling was his childhood home, that his wife had left voluntarily, and that she, a native of Algeria, had only married him for a French residence permit. The Court of Appeals found that there was ample evidence, such as medical reports, proving that the husband had committed violent acts against his wife on multiple occasions, that the wife had left the marital home because of such violence, and that there was no evidence that she had tried to terminate the marriage upon receipt of her residence permit. Furthermore, the Court stated that temporary housing in a women's shelter run by SOS Femmes was not tantamount to the wife's finding other lodging. The Court of Appeals therefore rejected the appeal and upheld the family court's decision to award the marital home to Appellant's wife.



Y., C. I. c/ L., B. A. Fallo de la Sala F de la Cámara Nacional en lo Civil (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Reviewing a trial court decision that granted a divorce based on the actions of both parties, the Appellate Court rejected a husband's suit for divorce, and instead granted the divorce based on the wife's counter suit, holding that the marriage failed due to the husband's domestic abuse of his wife.

 

Al revisar una decisión del tribunal de primera instancia que otorgó un divorcio basado en las acciones de ambas partes, el Tribunal de Apelación rechazó la demanda de divorcio de un marido y, en su lugar, otorgó el divorcio basado en la demanda de la esposa, sosteniendo que el matrimonio fracasó debido al abuso doméstico del marido hacia su esposa.



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

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

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



International Case Law

Hashi v. Denmark Human Rights Committee (ICCPR) (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, International law

Hibaq Said Hashi left Somalia for fear of persecution by Al-Shabaab.  She was divorced from one man and married to a second man, but her former husband claimed they were not divorced and she was having sexual relations with another man, which caused Al-Shabaab to call for her to be stoned.  Her father helped her leave Somalia and then he was killed, and her current husband was sentenced to death.  She traveled to Italy by boat, was registered and determined she was pregnant, but she faced poor conditions in Italy so she left for Sweden to have her baby.  When she learned Swedish authorities planned to send her back to Italy, she and her son moved to Denmark where she applied for asylum.  She claimed that if she returned to Somalia she would be persecuted and if she returned to Italy she would face harsh living conditions and would not be able to provide for her son’s basic needs.  She was ordered to leave Denmark to return to Italy, which Denmark considered her first country of asylum.  Upon appeal, the Committee, acting under article 5(4) of the Optional Protocol, decided that the removal of Hibaq Said Hashi and her son to Italy without any assurances from Italy that it would receive her and her son in conditions suitable for her child’s age and family’s vulnerable status would violate their rights under article 7 of the Covenant.  The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain effective assurances from Italy.  While considering her request for asylum, the Committee requested that Denmark not deport her and her son.



C. v. Australia Human Rights Committee (ICCPR) (2018)

Divorce and dissolution of marriage, International law, LGBTIQ

C. was a citizen of Australia and the United Kingdom who lived with A. as a couple in the State of Victoria and then Queensland.  They agreed to have a baby and that C. would be the birth mother.  They traveled to Canada and got married and then separated shortly after the marriage.  C. is the sole caregiver of the baby and no longer knows of the whereabouts of A.  C. wanted to formally dissolve her Canadian legal marriage so that she could remarry or enter a civil partnership in the future.  She also wanted to ensure she was not held responsible for A.’s debts.  Finally, when traveling abroad, she did not want A. to be deemed her legal spouse in certain countries where the marriage might be recognized and A deemed next of kin.  In Queensland, in order to obtain a file a divorce application to dissolve a marriage, a marital relationship must be legally recognized as a marriage.  Section 5(1) of the Marriage Act of 1961, which provided the relevant definition of marriage, define this term to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”  Further, Section 88EA of the Act provided that, “a union solemnized in a foreign country between: (a) a man and another man, or 9b) a woman and another woman, must not be recognized as a marriage in Australia.”  C. did not file for divorce in Australia because of the laws, nor did she apply in Canada or the United Kingdom because both had residency requirements for divorce.  C. filed her claim with the Committee claiming that the denial under Australian law of access to divorce proceedings for same-sex couples who have validly married abroad and the consequential denial of court-based relief in the form of a court order amounts to discrimination on the basis of sexual orientation, contrary to article 1491), ready together with article 291) (equal access to courts and tribunals), and article 26 (equality before the law) of the Covenant.  The Committee determined that C. was precluded from accessing divorce proceedings in Australia because her same-sex marriage was not recognized under sections 5(1) and 88EA of the Marriage Act of Australia, whereas couples in specific opposite-sex marriages not recognized in Australia, such as polygamous couples, do have access to divorce.  This was found to constitute differential treatment.  Australia stated they made a reasonable exception for polygamous marriages to enable parties to such marriages access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce.  The Committee determined that Australia did not explain why this stated reason does not apply equally to unrecognized foreign same-sex marriages.  In the absence of more convincing explanations from Australia, the Committee found that the differentiation of treatment based on sexual orientation to which C. was subjected regarding access to divorce proceedings was not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant.  Under article 2(3) of the Covenant, the Committee stated that Australia was under an obligation to provide C. with an effective remedy by providing full reparation for the discrimination suffered through lack of access to divorce proceedings.  Australia also was obligated to take steps to prevent similar violations in the future and to review its laws in accordance with the Committee’s views, and to provide the Committee information about the measures taken to give effect to the Committee’s views within 180 days.



Case of Bălşan v. Romania European Court of Human Rights (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions.  The assaults intensified when the applicant initiated divorce proceedings against her husband.  The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment.  She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office.  She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence.  The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes.  A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months.  The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.”  The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively.  The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints.  The applicant exhausted domestic avenues, but without success.  The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)



Jessica Lenahan Gonzales v. United States Inter-American Commission on Human Rights (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Jessica Gonzales petitioned that her human rights had not been protected. Previously the Supreme Court had ruled that her Due Process rights had not been violated after police didn't enforce a restraining order against her ex-husband, who subsequently murdered her three children. The Commission ruled that the state had not properly protected Jessica and recommended legislative reform to better protect women and children against domestic violence.



Bevacqua and S. v. Bulgaria European Court of Human Rights (2008)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following divorce and during extended custody proceedings in Bulgaria, B agreed to the father having contact with the child, S. However, he refused B’s contact with S. B recovered S from the kindergarten, which led to the father threatening her and eventually entering her home seeking to recover the child. B moved to a hostel for victims of domestic violence in another town, but the authorities threatened to prosecute her for abduction of S. Despite being asked by B to make an interim order concerning custody of S, the Bulgarian courts failed to do so. In order to avoid prosecution B agreed to care for S with the father in alternate months. S was subject to further violence by the father. She was granted custody of the child eventually, but the father was not prosecuted for his violence, or for subsequent violence against her. The ECtHR found violations of B and S’ right to respect for private and family life under Art 8 of the ECHR. The Court held that the Bulgarian court's failure to adopt interim custody measures without delay had adversely affected the well-being of S and insufficient measures had been taken in reaction to the father's behavior, however, the length of proceedings had not been unreasonable.



Yildirim v. Austria CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.



V.K. v. Bulgaria CEDAW Committee (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination

Ms. V.K., a Bulgarian citizen residing in Poland, sought to obtain a divorce from her husband after years of physical, emotional and economic abuse. Following a series of incidents in which her husband physically abused and intimidated both mother and children, Ms. V.K. took her children and left Poland for Bulgaria in order to hide from her husband and to seek protection and support from her family and the State. Once in Bulgaria, Ms. V.K. filed an application pursuant to the State’s Law on Protection against Domestic Violence, asking for an immediate protection order against her husband, invoking the Convention (CEDAW) and other human rights treaties. The District Court issued the order for immediate protection, but rejected Ms. V.K.’s application for a permanent protection order. On appeal, the Regional Court upheld the decision of the District Court. After exhausting all available domestic remedies, Ms. V.K. lodged a complaint with the CEDAW Committee alleging that the State had failed to provide her with effective protection against domestic violence, in violation of the Convention. She further claimed that the absence of a special law regarding the equality of women and men in the State, and the lack of recognition of violence against women as a form of discrimination, interfered with her human rights. Upon consideration, the Committee found that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband, along with the unavailability of shelters for battered women, violated the State’s obligation to effectively protect her against domestic violence. The Committee further concluded that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband was based on discriminatory notions of what constitutes domestic violence.



N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.



Memoranda

Child Marriage in Bangladesh: Causes, Consequences, and Legal Framework (2013)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination

This memorandum discusses the context, causes, consequences, and legal framework of child marriage in Bangladesh



Agreements Between Cohabitants in Louisiana, U.S.A (2011)

Divorce and dissolution of marriage

This memorandum examines the definition of cohabitation and its effect upon agreements between cohabitants in Louisiana, U.S.A.