Unequal & Unprotected
The Divorce notion still carries a stigma in the 21st century. Research carried out for Slater and Gordon indicates that traditional views of marriage remain strongly entrenched despite decades of steady erosion of the privileges and legal status that once went with it.
Divorce, also known as dissolution of marriage, is the termination of a marriage or marital union, the cancelling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries divorce requires the sanction of a court or other authority in a legal process, which may involve issues of alimony (spousal support), child custody, child visitation / access, parenting time, child support, distribution of property, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person; where polygyny is legal but polyandry is not, divorce allows the woman to marry another person.
Grounds for divorce vary widely from country to country. Marriage may be seen as a contract, a status, or a combination of these. Where it is seen as a contract, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. In contrast, in some countries (such as Sweden, Finland, Australia, New Zealand), divorce is purely no fault. Many jurisdictions offer both the option of a no fault divorce as well as an at fault divorce. This is the case, for example, in many US states.
Divorce should not be confused with annulment, which declares the marriage null and void; with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash.
The only countries that do not allow divorce are the Philippines, the Vatican City and the British Crown Dependency of Sark. In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an alien and satisfies certain conditions. The Vatican City is an ecclesiastical state, which has no procedure for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Colombia (1991), Andorra (1995), Ireland (1996), Chile (2004) and Malta (2011).
Case and point, Human Rights Watch reports that Lebanon does not have a civil code regulating personal status matters. Instead, there are 15 separate personal status laws for the country’s different recognized religious communities including twelve Christian, four Muslim, the Druze, and Jewish confessions, which are administered by separate religious courts.
Religious authorities often promoted this judicial pluralism as being essential to protecting Lebanon’s religious diversity. In reality, the multiplicity of laws means that Lebanese citizens are treated differently when it comes to key aspects of their lives, including marriage, divorce, and custody of children.
This variation has prompted rights activists in Lebanon to advocate for civil personal status law that would guarantee that citizens are treated equally, while ensuring that their freedom of belief is respected.
The report focused on one fundamental element of the problem with the current system of personal status laws: its discriminatory impact on women.
Our research—based on a review of all personal status laws in Lebanon, 447 recent legal judgments issued by the various religious courts, court sessions, and more than 70 interviews with women, lawyers, judges, social workers, and women’s rights activists—reveals a clear pattern of women from all sects being treated worse than men when it comes to accessing divorce and primary care for their children (“custody”).
Across all confessions, women faced legal and other obstacles when terminating unhappy or abusive marriages; limitations on their pecuniary rights; and the risk of losing their children if they remarry or when the so-called maternal custody period (determined by the child’s age) ends. Women were also systematically denied adequate spousal support during and after marriage—with religious courts often unfairly denying or reducing payments, including if a judge found a woman to be “recalcitrant” by leaving the marital home and refusing to cohabit with her husband or filing for severance.
Children also face violations of their rights, most importantly the right to have their best interest considered in all judicial decisions concerning their welfare, including rulings regarding their primary care giver. However, these violations lie beyond the scope of the report.
Discrimination against women results not only from laws, but also courts procedures. All of the women whom Human Rights Watch interviewed said numerous procedural obstacles, including high fees, protracted lawsuits, and lack of legal and material assistance during legal proceedings kept them from accessing religious courts and enforcing even their limited rights. Further, while the courts and religious laws should comply with the provisions of the Lebanese Constitution, the Court of Cassation, which is the highest civil court in the Lebanese judicial system, has very limited oversight over religious court proceedings and decisions, resulting in lack of oversight and accountability: Christian courts are administratively and financially independent and Muslim courts, although historically affiliated and funded by the state, are operationally independent of state institutions.
Religious institutions also provide little sustainable and appropriate legal or social support for women involved in court proceedings, a need that local NGOs have been unable to meet due to staff shortages and a dearth of material resources. In addition, women are often torn between numerous judicial authorities—criminal, civil, and religious— when attempting to resolve personal status-related disputes because they must often petition more than one of these courts to claim their rights.
Lebanon has ratified a number of international human rights covenants that protect and promote women’s equality during and after marriage, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), and has undertaken to implement other internationally recognized norms and standards on gender equality, including the Beijing Platform of Action and the Millennium Development Goals (MDGs).Many of these rights are also enshrined in the Lebanese constitution.
Lebanon’s host of religiously based personal status laws and court decisions that fail to guarantee equality in marriage and divorce fall foul of these obligations by permitting discrimination against women, and violating their human rights, including to non-discrimination, physical integrity and health.
Unequal Divorce Laws
Across all confessions, Human Rights Watch found that personal status laws and religious courts give women lesser rights than men to access divorce.
Sunni and Shia laws in Lebanon grant men an absolute right to divorce while women only have a conditional right to divorce. Under these laws, spouses may agree to share the right to dissolve the marriage by giving the wife the `isma, or the power to divorce without her husband’s consent. In practice, this is rarely done and largely rejected by society. Of 14 Muslim women interviewed, none had the `isma clause in their marriage contracts, and only 3 of the 150 reviewed divorce judgments before Ja`fari and Sunni courts were issued based on the wife’s exercise of the `isma. One court cleric said:
"Because of hormonal changes due to their period, they [women] find it difficult to make the right choices. How, then, can they possess the power to divorce?"
Without the `isma, Sunni women can only initiate a divorce by filing for severance—dissolution of the marriage by judicial order for reasons specifically enumerated under religious law.
Severance can only be issued, however, after the relevant religious court assesses fault for the marriage’s failure and if the women requesting severance shows that it is for specific reasons, such as the husband not paying spousal maintenance (payments a husband is obliged to make during marriage to meet his wife’s needs for food, clothing, shelter, and other living expenses)or being unable to have sexual relations due to impotence, contagious disease, insanity, or prolonged absence from the marital abode due to travel, disappearance, or imprisonment.
A review of 65 Sunni court cases where women successfully filed for severance shows that Sunni courts often find women partially culpable for the failure of the marriage –even when the husband beat them—thus reducing their pecuniary rights. As a result, many women bypassed the severance process and pre-emptively relinquished their pecuniary rights to maintenance and the deferred mahr, the sum a husband pays the wife when the marriage is terminated so their husband would agree to initiate a divorce.
Under Druze law, men also have an absolute right to unilaterally terminate a divorce at will and without cause but must do so in a court. Druze women can also be compensated if a judge finds that her husband is divorcing her absent a legitimate reason. Additionally, Druze men and women can terminate their marriage before a Druze court if the spouses mutually consent to a divorce. Severance is also grounds for divorce for Druze women.
Shia personal status law does not recognize severance, making Shia women’s access to divorce without the power to divorce written into her marriage contract even more limited than that of Druze and Sunni women. In these cases, Shia women seeking divorce can only seek relief from a Ja`fari religious authority, outside the court, which can divorce her on behalf of her husband—a practice known as “sovereign divorce.” The process is lengthy, and two lawyers who spoke to Human Rights Watch said that it may take up to two years to receive the order, with no guarantee that a religious court will then verify it and the woman will obtain a divorce.
In Christian marriages, while it is difficult for both husband and wife to dissolve their marriages, there are instances that allow men more grounds for divorce or annulment than women. Moreover, there are two aspects of the laws that impact women differently and disproportionately.
First, all Christian personal status laws hold that spousal violence, which overwhelmingly affects women, is in itself insufficient to obtain a prompt end to marriage, except in attempted murder cases. Second, Christian men in Lebanon can unilaterally convert to Islam, which affords them the right to marry up to four women and allows them to enter into new marriages without obtaining divorces. No similar processes exist for Christian women to bypass Christian personal status laws after their marriages have been consummated. This subjects them, at best, to lengthy and costly termination processes, and at worst to imprisonment in bad and sometimes abusive marriages.
Across all confessions, Lebanon’s religious laws and courts are not responsive to spousal domestic abuse. Under the Catholic personal status laws, domestic abuse is never sufficient grounds for obtaining an annulment, the only means by which Catholics in Lebanon can end their marriages unless a husband’s violence is attributable to mental incapacity that existed prior to the marriage and this incapacity makes him incapable of assuming basic marital duties. In Orthodox and Evangelical confessions, either spouse may petition to dissolve the marriage if he or she establishes that the other party attempted to kill him or her. Spousal abuse in and of itself is also not cause for dissolution, but only temporary desertion (which may later be grounds for dissolution if the couple does not reconcile within three years under Orthodox confessions or two years in Evangelical confession).
Shia and Sunni men in Lebanon also have the right to discipline and have intercourse with their wives. These rights, and the obligation of women to cohabit with their husbands across all confessions, endanger women’s safety.
Not only are abused wives often unable to obtain relief from the religious courts, but Lebanese civil and criminal law also fail to provide them with adequate protection from domestic violence.
On April 1, 2014, Lebanon’s parliament passed the Law on Protection of Women and Family Members from Domestic Violence. While establishing important protection measures and related policing and court reforms, the law still leaves women at risk of marital rape and other abuse. The law defines domestic violence narrowly, thus failing to provide adequate protection from all forms of abuse and falling short of United Nations guidelines on protection from domestic violence. Lebanese criminal law also still fails to criminalize marital rape.
Furthermore, the new domestic violence law states that in case of any conflict between the new law and personal status laws, personal status laws would take priority, even where they appear to tolerate violence against women. While the law does not include a provision that explicitly addresses how to resolve conflicts that may arise between civil court rulings over domestic violence and personal status court rulings, this article appears to be contrary to the recommendation of the UN Handbook for Legislation on Violence against Women, which states that “where there are conflicts between customary and/or religious law and the formal justice system, the matter should be resolved with respect for the human rights of the survivor and in accordance with gender equality standards.” Exempting matters governed by personal status laws from the domestic violence law undermines women’s security in the home.
In a positive development however, at least two judges implementing the domestic violence law have interpreted the definition of the acts of violence banned by the law more broadly. However, court rulings over domestic violence do not override or have to be factored in during personal status court rulings.
Economic Consequences of Terminating Marriage
Regardless of religious affiliation, women face discrimination in relation to distribution of marital property following the termination of the marriage and marginalization as a result of inadequate spousal maintenance payments during marriage.
The absence of any religious or civil law in Lebanon valuing women’s non-monetary contributions to the marriage at the time of termination—including household and family care, lost economic opportunity and her contribution to her husbands’ career—contributes to the discrimination against women.
Further, because Lebanese law does not recognize the legal concept of marital property, property reverts to the spouse in whose name it is registered (typically the husband), regardless of who has made contributions to it. In eight cases, women interviewed by Human Rights Watch said that they were not compensated for their financial contribution to the marital home or other joint expenses when the marriage ended because the property was registered under the husband’s name.
In addition, under all personal status codes the man’s obligation to support his spouse expires when the marriage is dissolved by a final court judgment (since a husband’s duty to support his wife is conditioned on her duty to cohabit with him). During the court proceedings in cases of separation, spousal maintenance for all confessions, except in Christian abandonment cases, is typically only granted as a temporary measure when husbands fail to provide for their wives.
Even in these cases, maintenance might not be granted to wives that judges find are recalcitrant. In all cases where temporary maintenance is considered, the decision to grant it is based on the judge's discretion and the maintenance is frequently too low to cover basic living costs. In the Muslim confessions, court orders requiring husbands to pay maintenance are in practice often very small amounts and do not reflect the wife’s actual need or the husband’s financial capability.
Under Sunni and Shia personal status laws, at the termination of the marriage, women are at most only entitled to deferred mahr payments—the amount stipulated in the marriage contract that the husband will pay upon divorce or death. If a judge finds the wife at fault for the divorce, mahr payments are reduced. In some cases, divorced women find themselves stripped of all financial resources after leaving their husbands.
Under Christian and Druze personal status laws, conditions for compensation—which is usually granted to a spouse when the other is at fault—are narrow, if they exist at all, and the sum awarded is usually not enough to allow women to support themselves until they can become financially independent.
Care of Children (“Custody”)
Shia, Sunni, and Druze religious laws generally maintain that, in the event of divorce, the child’s age, not their best interests, should determine with whom they reside. In a recent development, Sunni judges can, at their discretion, consider the best interest of the child in determining custody. Similarly, Christian personal status laws also use a child’s age as a principle factor in determining custody but also allow judges, at their discretion, to make custody determinations based on the best interest of the child.
Alongside the concept of custody, religious courts recognize the concept of guardianship, which entails the preservation and upbringing of children and their assets until they reach adulthood. Across religious laws with the exception of the Armenian-Orthodox personal status law, the right of guardianship both during marriage and after is granted to the father who is recognized as the peremptory moral and financial guardian of his children.
This practice fails to adequately uphold the standard set forth by the Convention on the Rights of the Child, which instructs state parties that, in all matters concerning children, “the best interest of the child shall be a primary consideration.”
For women legally able to obtain a divorce, concerns about having their children reside with them often make them unable or unwilling to pursue a divorce.
Further, in some cases in which women tried to keep their children after the maternal custody period, or when fathers tried to take their children during the maternal custody period, Human Rights Watch’s review of court cases found that some religious courts granted the father custody of the children because of certain criteria that were applied to women but not men, and without considering what was in the best interest of the child.
Women who spoke to Human Rights Watch were deemed to be unfit parents and lost their maternal custody rights for a host of reasons other than their inability to care for their child. These reasons include their (different) religious affiliation, lack of “proper religious education” for children, long work hours, getting remarried, or “questionable” social behaviors. A husband’s right to maintain primary care of his children is not contingent on his remaining unmarried and he is less likely to be found to be an unfit parent, except for example in extreme cases when he could not care for the child due to alcoholism or drug addiction.
Human Rights Watch interviewed women who stayed in abusive marriages, gave up their monetary rights, and did not remarry to maintain primary care of their children in cases where judges did not consider the best interests of the child, or where they evaluated the best interests of a child using criteria that discriminated against women.
The cross-confessional child protection law that the Lebanese parliament adopted in 2002,Law 422 on Protection of Children in Conflict with the Law or at Risk, gives the juvenile civil court legal grounds to intervene if the civil judge considers that the child is in danger.
After years of rejecting petitions to review the content of religious judgments regarding custody cases that conflict with juvenile judge judgments, the court in 2009 acted as a brake on religious personal status codes, refusing to give civil recognition and force of law to any religious judgment that contravenes a basic component of the public order: child welfare and protection. In applying the 2002 law the Court of Cassation interpreted the law to give civil courts jurisdiction not just over procedural matters but, for the first time, over a substantive issue. Following these reforms, religious courts have in some cases also considered the best interest of the child when determining which parent will obtain primary care responsibility.
A Way Forward
All interviewees, including the religious judges whom Human Rights Watch interviewed, agreed that fundamental personal status laws must be reformed to protect and end discrimination against women.
Religious and civil authorities have recently made some positive legal changes, including codifying the Coptic personal status law (2012); amending Evangelical and Orthodox personal status laws, including to admit non-clerical judges and give judges more latitude in awarding damages during termination of marriage lawsuits; and implementing the Law 422 on Protection of Children in Conflict with the Law or at Risk (2002).
Yet while these piecemeal reforms have resulted in some modest improvements via-a-vis the rights of children and women, they are insufficient to address the systemic discrimination against women under personal status laws in Lebanon, or the failure of the courts to prioritize the best interest of the child.
One solution is to adopt a civil code that would ensure equal rights for all Lebanese, regardless of gender or religion. Current efforts to adopt a civil code have focused on making it optional for people. In that sense, it would operate alongside religious laws.
The report affirms the right and need for an optional civil personal status law based on the principles of equality and non-discrimination and the right to choose one’s religious affiliation (or none at all) in order to protect women and alleviate their legal, economic, and social marginalization.
Yet such a law alone will not be enough to end the discrimination in personal status that stem from existing religious personal status laws. Fundamental changes must also be made to existing religious legal codes, and state institutions must exercise oversight over religious courts and texts.
Food for thought!