B Explanatory memorandum
by Ms Margreet De Boer, rapporteur
1 Introduction
1. What happens when a person
who had entered willingly into a marriage wishes to end it, but
finds that they are unable to do so either legally or in the eyes
of their community? Even though civil divorce is provided for by
law in all Council of Europe member States, in many of them, women
– and sometimes men – may experience such a situation, known as
marital captivity.
2. Marital captivity is an infringement on the trapped spouse’s
personal autonomy, a basic principle of human rights law. Persons
(most frequently women) trapped in marital captivity lose their
independence and their right to self-determination. They often cannot
start a new relationship or remarry, as they may be considered by
their community to have committed adultery or bigamy, which may
attract drastic consequences for them. The impact on children may
also be devastating, as they grow up in an unsafe and unstable environment.
Note
3. A person who tries to put an end to this situation may find
themselves alone and isolated from their own community, and may
encounter serious violence and threats. These can include the risk
of “honour”-based violence – which may constitute a major barrier
to escaping a harmful marriage and seeking divorce. The fear, stress
and social consequences caused by marital captivity prompt some
women to attempt suicide, some resulting in fatal outcome.
Note
4. Marital captivity raises many issues under Articles 5 (right
to liberty and security of the person), 8 (right to private and
family life), 12 (right to marry) and 14 (prohibition on discrimination)
of the European Convention on Human Rights (ETS No. 5), as well
as rights codified in the European Social Charter (revised) (ETS
No. 163) and in the United Nations International Covenant on Economic,
Social and Cultural Rights.
5. Because there is as yet little awareness of this phenomenon,
it is difficult to estimate its scale, as shown by a study carried
out in 2014 which estimated that in the Netherlands, between 447
and 1 687 cases of marital captivity had occurred in the years 2011-2012.
Note This would be equivalent to anywhere
between 18 000 and 68 000 cases of marital captivity occurring across
Council of Europe member States each year
Note – together with all the human rights
violations that such situations may entail.
6. These concerns prompted me to initiate the motion for a resolution
which forms the basis of this report (
Doc. 15193). In line with this motion, and following on from
Resolution 2233 (2018) “Forced marriage in Europe” and
Resolution 2395 (2021) “Strengthening the fight against so-called ‘honour’
crimes” of the Parliamentary Assembly, I aim through this report
to bring to light the wide range of situations that can lead to marital
captivity in Council of Europe member States, and to devise recommendations
as to how to effectively address them.
7. As part of my work on this report, on 9-10 March 2022 I carried
out a fact-finding visit to the Netherlands, which is (so far) one
of the rare States in Europe where the authorities have begun to
come to grips with the realities of marital captivity and to reflect
on solutions. I would like to thank here the Dutch Parliament, institutions
and authorities, as well as the academics and members of civil society
whom I met during the visit, and who provided highly useful background
to my work. In addition, on 1 July 2022, the Parliamentary Network Women
Free from Violence held an important webinar entitled “Finding solutions
to marital captivity”. I would like to thank the speakers, whose
contributions and different perspectives were invaluable to my work.
I have integrated the key conclusions from the visit and the webinar
throughout my report.
Note
2 Marital captivity and forced marriage:
links and differences
8. Forced marriage, defined by
the Assembly as “the union of two persons, at least one of whom
has not given their full and free consent to the marriage”, has
long been recognised as a breach of human rights. The Assembly also
considers child marriage, or “the union of two persons, at least
one of whom is under 18 years of age”, to be a form of forced marriage,
as a child cannot be considered to have expressed full, free and informed
consent to a marriage.
Note These
definitions, which are in keeping with understandings of forced marriage
in international law, focus on the lack of consent of at least one
of the parties at the time at which they enter into a marriage.
9. Assembly
Resolution
2233 (2018) noted that a marriage in which at least one of the parties
is not free to put an end to the marriage or to leave their spouse
could be considered to be a forced marriage – and thus, also, a
form of violence against women – but did not explore in depth the
legal or human rights ramifications of this reality. Yet, as already
mentioned, marital captivity can give rise to many serious human
rights violations.
10. Article 37 of the Council of Europe Convention on preventing
and combating violence against women and domestic violence (CETS
No. 210, “Istanbul Convention”) requires States to make forced marriage
a criminal offence. It defines forced marriage as “the intentional
conduct of forcing an adult or a child to enter into a marriage”.
The extent to which this and other provisions of the Istanbul Convention
may provide solutions to marital captivity – including, inter alia, its Article 42, which
covers so-called “honour”-related crimes – is examined in more depth
in chapter 7 below.
3 Situations
that can give rise to marital captivity
11. Research conducted in,
inter alia, the Netherlands and
the United Kingdom indicates that there is a wide variety of situations
of marital captivity. Some of these may involve intentional conduct
on the part of the other party to the marriage or of other family
members, and could be considered as forms of forced marriage, as noted
in
Resolution 2233 (2018). Other situations of marital captivity may result simply
from inadequate legal provisions, or inconsistencies between different
national legal systems.
12. To tackle marital captivity effectively, it is essential to
capture the full scope of situations that may be concerned. Dutch
researchers Susan Rutten and Pauline Kruiniger have conducted a
systematic analysis of these situations from the perspective of
the law, identifying two main forms of marital captivity, with in
each case two sub-forms as outlined in chapters 3.1 and 3.2 below.
Note
13. In all cases, marital captivity can have severe detrimental
consequences for the trapped spouse, violating a broad spectrum
of human rights. First and foremost, a partner who refuses to release
their spouse from a marital situation often does so as a means of
controlling their spouse. Practical support measures are crucial
to enable the trapped spouse to regain their autonomy, and may be
similar across a variety of circumstances. These are discussed in
chapter 8.4. However, different legal situations may require different avenues
of legal redress. I examine these issues in chapter 8.3.
3.1 Trapped
in a legally recognised marriage
14. In the first main form of marital
captivity, the person concerned is trapped in a legally valid marriage.
This form of marital captivity has two sub-forms:
- first, the person may be trapped
in a civil marriage that they are entitled by law to terminate (by
divorcing or having the marriage annulled by a civil court), but
they find themselves unable to do so in practice, for example because
they face pressure, coercion or exclusion from their family or community.
There is no legal impediment to civil divorce in such a case, but
the person is unable to benefit from the laws permitting it;
- second, international private law issues may come into
play. For example, the person may have been married abroad (country
A) and had their marriage subsequently recognised in another country,
where they live (country B). They may later divorce under the law
of country B, but find that the divorce is not recognised in country
A. They thus remain married according to the law of country A. In
such a case, the trapped spouse may face specific additional human
rights violations: for example, a wife may find herself unable to
exercise her freedom of movement because her husband under the law
of the country of origin (country A) refuses to give his permission
for her to renew the passport issued by that country.
3.2 Trapped
in a marital situation not recognised by law
15. In the second main form of
marital captivity, the person is trapped in a marital situation
that is not recognised by law but which is (still) considered valid
within their community and which affects many rights and aspects
of their daily life. This notably concerns religious and customary
marriages, and can
inter alia affect the
possibility of remarrying under religious law. Again, two sub-forms
can be identified:
- in the first
case, the person’s religious or customary marriage was never legally
recognised. This may be because they did not also conclude a civil
marriage or registered partnership (in a State where this is required)Note or
because their religious or customary marriage was never officially
registered (for example, in a State where civil marriage is not
compulsory but religious marriages must be registered in accordance
with the law in order to have legal effect);Note
- in the second case, the person did enter into a civil
marriage and later divorced under civil law, but the religious or
customary marriage continues to be considered to exist and to produce
effects in their private life. This could for example be the case
for a person married according to Roman Catholic or Jewish Orthodox
rites as well as in accordance with civil law, and later divorced
under civil law.
16. The above analysis shows the complexity of the situations
that States must address in order to prevent and tackle marital
captivity comprehensively and effectively, and put an end to the
human rights violations that it entails.
4 Religion
and marital captivity
17. As was stressed by Shirin Musa,
Director of Femmes for Freedom, at our webinar of 1 July 2022, religion continues
to strongly influence attitudes to divorce. Some situations of marital
captivity are closely related to notions of religious marriage:
certain interpretations of religious laws or texts do not allow
for divorce, or they require the permission of the other (usually
male) partner. There may also be rules in place that limit a spouse’s (and
in particular a wife’s) capacity to seek divorce. I have dealt briefly
with some examples below.
18. It is of course crucial to emphasise here that religious laws
and practices may be applied in different ways across different
communities within a single religion. The broad outlines given below
should not be understood as a definitive statement about practices
in any of the religions mentioned. Rather, they aim to give an indication
of some of the situations in which marital captivity can arise.
4.1 Christian
marriages
19. The Roman Catholic Church does
not recognise divorce. A couple married in the Roman Catholic Church
and in accordance with civil law may obtain a civil divorce, but
neither partner will be allowed to remarry in that church unless
their first marriage has been declared null and void.
20. During my fact-finding visit to the Netherlands, a number
of my interlocutors also mentioned Christian religious communities
in the Dutch Bible Belt as places where marital captivity may arise.
Isolated, closed or inward-looking religious communities create
a context where women may find themselves under considerable pressure
to remain in their marriage, even if it is abusive. Leaving their
marriage may thus also mean renouncing their religious community.
This can create a strong impediment to leaving, which will be even stronger
if they have little access to information about their rights or
about support available to them.
4.2 Jewish
marriages and the “get”
21. Under Jewish law, a religious
divorce can only be finalised if the husband gives his wife a document called
a “get”. This gives the husband the power to prevent the religious
divorce, maintaining power and control over his wife even if a civil
divorce has been decreed. The term “agunah”, or “chained wife”,
is often used to refer to a woman whose husband refuses to give
her the get. A wife may also refuse to accept a get, but only in
a very limited set of circumstances. In an acrimonious divorce,
the balance of power therefore strongly favours the husband, who
may prevent the religious divorce altogether or delay it for long
periods, demanding high sums of money in exchange for giving the
get, or using custody arrangements as leverage, for example.
Note
22. Keshet Starr, executive director for the Organization for
the Resolution of Agunot, a New-York based NGO that seeks to eliminate
abuse from the Jewish divorce process,
Note says with respect to such cases,
“When people first hear about this issue, they think, well why doesn’t
the woman just walk away? After all, if she’s already divorced in
secular court, there’s nothing stopping her from legally remarrying.
But leaving a religious community is a bigger deal than people think:
it’s giving up your entire way of looking at the world, your systems of
meaning, your social and professional networks, your family relationships.
It’s an enormous cost. For someone to be faced with the options
of either having this untenable situation [of remaining in an unwanted and/or
harmful marital situation] or walking away from [their] community,
those are pretty terrible options.”
Note
4.3 Islamic
marriages
23. Under Islamic law, a man can
unilaterally repudiate his wife (
talaq),
with or without her consent and without needing to provide valid
reasons. Divorce can also be obtained by mutual consent (
khul), namely the offer and acceptance
of divorce. This often involves compensation, such as repayment
of a dowry, payment of some other financial sum, or waiving custodial
rights or remuneration for childcare. Where the husband is not willing
to proceed via
talaq or
khul, the wife may petition an Islamic
court or Sharia council for divorce (
tatliq) or
annulment (
faskh) of the marriage.
There is a significant power imbalance between men and women: a husband
can freely repudiate his wife whereas a wife needs her husband’s
co-operation to obtain divorce by mutual consent or may have to
engage in costly proceedings in order to procure a divorce – which
may only be available to her on limited grounds, depending on the
school of Islam followed.
Note
24. As noted earlier, where the marriage has been concluded in
a country where Sharia is integrated in the legal system, a secular
divorce obtained in another country may not be recognised in the
country of origin, meaning that the partners will continue to be
considered as married there. But even without any transnational aspects,
in communities where high importance is accorded to religious practices,
a civil divorce may not be recognised by a religious community as
having dissolved a religious marriage.
Note As was pointed out during
my fact-finding visit, a woman whose Islamic marriage has not been
dissolved and who has entered into a new relationship may be perceived
as adulterous and may be at risk of harm if she travels to certain
countries, for example to visit family members. This risk was also
emphasised during the webinar of 1 July 2022 by Kim Lecoyer, researcher
and lecturer at the Centre for Family Studies of Odisee University
of Applied Sciences, post-doctoral researcher at the Human Rights
Centre, University of Ghent, and Chair of KARAMAH EU: Muslim Women
Lawyers for Human Rights, who presented the outcomes of the social
and legal research that she has conducted into the family life of
Belgian Muslim women, using an intersectional perspective.
25. An independent review of Sharia councils in England and Wales
found in 2018 that over 90% of people turning to these councils
were women seeking an Islamic divorce. In many cases this was because
the couple had only married religiously. Their marriage had never
been civilly registered and therefore the woman could not seek a
civil divorce.
Note Sharia councils have no legal
status and no binding authority under civil law in the United Kingdom
but they may constitute the only avenue for women who are seeking
to put an end to their Islamic marriage in the eyes of their religious
community, and whose husband is unco-operative. The review found
that discriminatory practices (against women) existed in some of
these councils. At the same time, it considered that such councils
should not be banned, as they were fulfilling a need in some Muslim communities.
It recommended a number of actions that should be taken to align
Islamic marriage with Christian and Jewish marriage in UK law and
to raise awareness and promote cultural change within the communities concerned
about women’s rights and civil law, especially in the field of marriage
and divorce.
4.4 Hindu
marriages
26. Because marriage is a sacrament
in Hinduism and is considered to bring about spiritual, physical
and social transformation of the spouses, it is often said to be
indissoluble. Divorce does occur within some Hindu communities,
although again, women may invoke fewer grounds for divorce or separation
than men. The general understanding of Hindu marriage as indissoluble,
and in some cases the lack of divorce rites, may however create
situations of marital captivity, either because a couple that obtains
a civil divorce is not considered to have been released from their
religious marriage, or because the view that Hindu marriage cannot
be undone leads the couple not to pursue a civil divorce at all.
Note
5 Marital
captivity arising outside the religious sphere
27. As many of my interlocutors
during my fact-finding visit to the Netherlands were at pains to
emphasise, marital captivity may have many causes besides religion.
For example, as noted above, different laws applicable to marriages
in different countries may prevent a partner to a binational marriage,
or who has moved from one country to another, from divorcing.
28. Marital captivity can also occur where there are high social
costs of separation or divorce, without any relation to religion.
In addition to strong social stigma, a lack of financial autonomy,
emotional pressure, fear or dependency can all be impediments to
divorce. Family pressure is often combined with isolation and the
lack of an independent social safety net. Other factors include
domestic violence or threats of violence or so-called “honour” killings;
fear for the safety or well-being of children; fear of losing custody
of or contact with children; lack of financial autonomy, sometimes
connected to a low level of education; fear of losing a residence
permit that depends on the continuance of the relationship with
the spouse; language barriers, resulting in a lack of access to
information about support services for victims; as well as health
problems or a disability.
Note
29. Many of the elements mentioned above are similar to those
that may contribute to forced marriages and to so-called “honour”
crimes, and which have previously been explored by the Assembly
through the excellent work of our colleague Béatrice Fresko-Rolfo
in her reports entitled “Forced marriage in Europe” (
Doc. 14574) and “Strengthening the fight against so-called “honour”
crimes” (
Doc. 15347).
Note And here too,
just as with forced marriage and so-called “honour” crimes, when
a spouse withholds their agreement to end a marriage, it is very
often a way of maintaining control. There is frequently a considerable
prior history of domestic abuse; trapping their spouse in the marriage
is rarely the first abusive act by the partner concerned.
Note
6 Human
rights impact on victims
30. As mentioned before (paragraph
2), marital captivity is an infringement on the trapped spouse’s
personal autonomy, a basic principle of human rights law. It may
attract drastic consequences for them as well as for their children.
Their family may also be pressured, whether in the country of residence
or abroad, to persuade the “disobedient” woman to conform to the
expectations of the community or her husband’s family. The impact on
children may also be devastating, as they grow up in an unsafe and
unstable environment. A person who tries to put an end to this situation
may find themselves alone and isolated from their own community,
and may encounter serious violence and threats. These can include
the risk of “honour”-based violence – which may constitute a major
barrier to escaping a harmful marriage and seeking divorce. The
fear, stress and social consequences caused by marital captivity
prompt some women to attempt suicide, some resulting in fatal outcome.
Note
31. Marital captivity thus raises many issues under Articles 5
(right to liberty and security of the person), 8 (right to private
and family life), 12 (right to marry) and 14 (prohibition on discrimination)
of the European Convention on Human Rights, as well as rights codified
in the European Social Charter (revised) and in the United Nations
International Covenant on Economic, Social and Cultural Rights.
7 Marital
captivity and the Istanbul Convention
32. The Istanbul Convention does
not include a specific provision expressly prohibiting marital captivity. However,
as pointed out in paragraph 10 above, a number of its provisions
may be relevant to such cases. I would like to thank Francesca Montagna,
Adminstrator, Secretariat of the Group of Experts on Action against Violence
against Women and Domestic Violence (GREVIO), who explored these
issues together with us during the webinar held on 1 July 2022.
Her analysis was invaluable to my understanding of these issues.
Of course, the views expressed below are my own, and should not
be interpreted as reflecting an official stance of the GREVIO secretariat.
33. A first, crucial point is that Article 37 of the Convention,
on forced marriage, specifies that “the intentional conduct of forcing
an adult or a child to enter into a marriage” and “the intentional
conduct of luring an adult or a child to the territory of a Party
or State other than the one she or he resides in with the purpose
of forcing this adult or child to enter into a marriage” should
be made criminal offences by all States Parties. These definitions focus
on coercion in the lead-up to and at the moment at which the person
enters into the marriage. They do not require States Parties to
criminalise all forms of marital captivity as such. Article 37 can
only apply to some cases of marital captivity – specifically, those
that arise due to a continuing situation of forced marriage (to which
the spouse concerned never consented from the outset). Moreover,
it applies to the lead-up to and the conclusion of the marriage
– not to the continuing situation of marital captivity as such.
34. Other provisions of the Istanbul Convention may be relevant
to a wider variety of cases, and may be highly important in protecting
a victim of marital captivity from being forced to remain in a harmful
relationship. Cases involving psychological or physical violence
may for example be covered, respectively, under Articles 33 and
35 of the Convention. Likewise, where a husband repeatedly engages
in threatening conduct against his wife in a situation of marital
captivity, this could fall within the ambit of Article 34, on stalking.
35. Article 42 of the Istanbul Convention, on unacceptable justifications
for crimes, including crimes committed in the name of so-called
“honour”, requires States to ensure that in criminal proceedings,
it is not possible to rely on claims that the victim has transgressed
cultural, religious, social or traditional norms or customs of appropriate
behaviour to justify acts of violence against women or domestic
violence. This provision would also apply in cases of so-called
“honour” crimes committed against women who had sought to leave situations
of marital captivity.
36. Of particular relevance in marital captivity cases involving
transnational marriages, Article 59 of the Istanbul Convention guarantees
victims of violence against women or domestic violence the right
to request an autonomous residence permit in the case of the dissolution
of their relationship or marriage. This is crucial, as I shall discuss
further in chapter 8.4 below, and it highlights the importance for
all States Parties of ratifying the Istanbul Convention without
making reservations regarding this provision.
37. More generally, the provisions of the Convention on support,
prevention and protection could apply in any situations of marital
captivity involving forms of violence against women or domestic
violence recognised by the Convention. Preventive measures may be
especially important, in particular through education, as foreseen
under Article 14 of the Convention.
8 Solutions
to marital captivity
38. When I began working on this
report, the sheer scope and scale of the issues and human rights
at stake led me to wonder whether it was realistic to claim that
we could find solutions to marital captivity, or whether the problems
were so wide-ranging and so deep as to be intractable. But my research
and, in particular, the input from many inspiring interlocutors
during my work on this report, have shown that many legal and practical solutions
are already available – we just need to be aware of the issues at
stake and alert to the possibility of applying these solutions.
Our aim must be to ensure that anyone in a situation of marital
captivity is able to put an end to it – simply, and safely.
8.1 Prevention
39. Of course, the best solution
to marital captivity is prevention. Many of my interlocutors in
the Netherlands mentioned the importance of raising awareness within
society about the risks of marital captivity, and of educating women
(especially young women) about their rights in this field. Finding
ways to reach women in isolated communities, including Bible Belt
communities, can represent a major challenge here. Outreach to migrant
women can also be very difficult, especially when they have arrived
in the Netherlands through marriage, with little or no knowledge
about their rights, and where there is a need to overcome language
and sometimes also cultural barriers.
40. As was underlined by Meltem Weiland, Director of the Nationwide
Coordination Centre against Abduction and Forced Marriage, Vienna,
during our webinar of 1 July 2022, families often provide inaccurate or
incorrectly translated information to women who move to another
country to marry. Migrant women need to receive information (independently
of any information that may be provided by their families) in their
mother tongue, before leaving their country of origin, about the
country where they will live, in particular about labour and human
rights. This would help to prevent marital captivity. I believe
that the consular services should be made aware of this issue and
should provide such information to spouses moving to their country.
8.2 Positive
peer pressure through (religious) communities
41. As we have seen above, pressure
to conform to religious norms, tradition or custom can be a strong factor
trapping women in harmful marital situations. Changing mindsets
within communities can therefore be a powerful tool for overcoming
marital captivity. Making clear that religion, tradition or custom
can never serve as an excuse for committing abuse against individuals
– and that such abuse is resolutely condemned by the community concerned
– can also be a highly persuasive factor in ending marital captivity.
42. Jewish Orthodox communities in many countries, in particular
those communities also having strong feminist movements, have explored
ways of persuading get abusers to give the get without having to
resort to legal proceedings. Campaigns to publicly expose authors
of get abuse have been used in some cases to generate peer pressure
on the husband from within his religious community to give the get.
Such campaigns were previously conducted by publishing classified
advertisements or picketing the husband’s place of residence, but
now take place increasingly on social media. The latter can be particularly
effective in cases where community pressure cannot be applied in
person, for example because the husband and wife no longer frequent
the same religious community or live in the same city or country,
or where the husband is imprisoned (sometimes for domestic violence
committed against his wife). Of course, such public shaming, whether
online or offline, must never itself cross the line into abuse.
43. Religious law may itself provide effective avenues of redress.
Again within Jewish communities, possibilities explored notably
by the London Beit Din in recent years include refusing to grant
honours in a synagogue to a get-abusing husband, or the withdrawal
of burial rites. Faced with consequences such as these from within
his own religious community, the husband is likely to grant the
get. In Israeli jurisdictions, a husband can moreover have his driver’s
licence withdrawn or even be imprisoned for get refusal.
Note
8.3 Using
the legal system to overcome religious forms of marital captivity
44. As the examples below show,
civil and criminal law penalties can also provide powerful lines
of action for ending situations of marital captivity. I believe
that these avenues are worth exploring further, and that States
should ensure that they are readily accessible to victims of marital
captivity.
8.3.1 No-fault
divorce
45. I am concerned that the legal
provisions governing divorce may themselves constitute a barrier
to ending a harmful marriage, notably where they are unnecessarily
complex or costly to negotiate. I therefore consider it crucial
that no-fault divorce – that is, divorce without the need to prove
misconduct by one of the parties to the marriage – be available
and easily accessible in every country. This includes ensuring access
to legal aid for all victims of marital captivity who need it, regardless
of their residency status.
46. A further question worthy of deeper reflexion in future is
whether our legal systems should recognise a human right to divorce
(namely a right not to remain in a marriage to which at least one
party no longer consents), and what would be the legal consequences
of recognising such a right.
8.3.2 Using
the law of contracts to prevent marital captivity
47. In the Jewish Orthodox community,
notably in the United States of America, some NGOs are working together
with rabbis to promote the conclusion of pre-nuptial contracts to
prevent situations of marital captivity arising later. Under such
contracts, the future husband freely agrees to pay a substantial
financial penalty to his wife for each day that he fails to give
the get, should the couple subsequently divorce under civil law.
Such contracts are enforceable before the civil courts, providing
a powerful incentive to husbands not to delay giving the get. It
should be noted that Jewish law requires that the get be given of
the husband’s own free will. It is therefore important to ensure
that there is no element of duress in the conclusion or execution
of such contracts (which might invalidate them in contract law as
well).
Note
8.3.3 Combining
civil divorce with an obligation to co-operate with a religious
divorce
48. As the Dutch Minister for Legal
Protection has stated, “Everyone should have the freedom to obtain
a divorce and continue their lives separately. This applies to a
civil marriage as well as to a religious marriage, regardless of
whether the latter is in addition to a civil marriage. It should
not be possible for one spouse to limit their partner's freedom
in this regard.”
Note
49. In the Netherlands, a new law was proposed in 2019 so as to
enable procedures for finalising both a civil-law divorce and the
dissolution of a religious marriage to be combined in a single set
of proceedings. This means a party trapped in a marriage will no
longer have to take separate action to obtain a court order requiring the
other party to co-operate with the dissolution of a religious marriage.
The legislative proposal also codifies the obligation on parties
to a religious marriage to co-operate with a religious divorce.
Note
50. During my fact-finding visit to the Netherlands, I had the
opportunity to discuss progress on this text with a representative
of the Ministry for Justice and Security. An amendment introduced
in the lower house of parliament, which sought to make both partners
criminally liable if they entered into a religious marriage without having
first contracted a civil marriage, had created difficulties. While
the aim was to ensure that all spouses married civilly and could
benefit from the provisions governing civil divorce, the impact
would be to make it impossible for either partner to denounce such
a situation as they would expose themselves to criminal prosecution.
The Senate was working to resolve these issues.
8.3.4 Using
criminal law provisions prohibiting psychological violence to end
situations of marital captivity: the example of get refusal
51. Where marital captivity forms
part of a broader pattern of abuse or domestic violence, a husband
may exercise various (other) forms of coercion or control over his
wife – for example, he may exercise financial control over his wife,
cut her off from her friends or family, deliberately undermine her
self-confidence, or engage in other forms of psychological or physical
abuse. Such behaviour may come within the ambit of provisions prohibiting
psychological violence or physical violence, which States Parties
to the Istanbul Convention are required to introduce in line with
its Articles 33 and 35.
52. In the United Kingdom, lawyers and activists seeking to combat
severe cases of get abuse have recently begun seeking out cases
for strategic litigation and bringing private prosecutions under
the criminal law provisions prohibiting controlling or coercive
behaviour in an intimate or family relationship. Such behaviour
has been expressly prohibited since 2015 under Section 76 of the
Serious Crime Act 2015 (subsequently amended by Section 68 of the
Domestic Abuse Act 2021). I would like to draw attention at this
stage to the following elements that may be worth bearing in mind
in other jurisdictions or in other cases where the cause of marital captivity
is the behaviour of one of the partners:
- private prosecutions require the victim to meet all the
evidentiary requirements that would be imposed on the public prosecution
service if the latter were bringing the proceedings, but give the
victim far greater control over the running of the case;
- private prosecutions may be costly to bring, which may
be a barrier for victims. However, if the judge finds that it was
reasonable for the complainant to bring the prosecution, they may
order the prosecution’s costs to be covered by the State;
- under the above United Kingdom legislation, four elements
must be met in order for an offence of controlling or coercive behaviour
in an intimate or family relationship to be committed: first, the
behaviour that is controlling or coercive must be engaged in repeatedly
or continuously; second, there must be a personal connection between
the perpetrator and the victim; third, the behaviour must have a
serious effect on the victim; and fourth, it is necessary that the
perpetrator knows or ought to know that the behaviour will have
a serious effect.Note
53. To date, four such cases have been brought in the United Kingdom.
In the first two cases, the husband decided to give the get before
the criminal trial began, and the wife then discontinued the criminal
proceedings. In the third case, the husband pleaded guilty of coercive
and controlling behaviour just before the criminal trial was due
to begin, but did not at the same time give the get. The sentencing
hearing was set for a later date. He risked up to 12 months of immediate
imprisonment. The private prosecutors (acting on behalf of the wife) considered
that, if the husband gave the get prior to sentencing, this should
be considered a mitigating circumstance, which could justify a suspended
sentence rather than immediate incarceration. In the fourth case,
the defendant contested the existence of an intimate relationship
with his wife, as they no longer lived together. He argued that
this would make the original wording of Section 76 of the Serious
Crime Act inapplicable. The trial in this case was due to begin
in April 2022.
Note All
four of the above cases are based on the specific provisions of
UK law prohibiting controlling or coercive behaviour in an intimate
or family relationship. However, they may provide useful indications
as to strategies that could be applied in other jurisdictions, too.
8.4 Support
for victims
54. A wide range of support measures
are essential to ensuring that victims of marital captivity are
able to break out of this situation. I would like to pay tribute
to the many organisations that I met during my fact-finding visit
and online during our webinar who are already providing extensive
support to women in situations of marital captivity, forced marriage
or abandonment.
55. First and foremost, information about rights and about where
to seek help is crucial. Such information must be readily accessible
and available in a variety of languages. One interesting example
is the leaflet “Information about religious marriages: Marriage,
divorce and marital captivity” published by the Dutch Ministry of
Justice and Security in March 2021.
Note
56. As Meltem Weiland pointed out during our webinar, transparent,
clear information about support services must be readily accessible
to migrant women, in their mother tongue and without barriers, so
that they understand and can use it. Achieving this can be challenging,
because control exercised by the community often obstructs women’s
access to information about their rights and, ultimately, isolates
them. A number of interlocutors during my fact-finding visit to
the Netherlands also emphasised this challenge, and sought ways to
use other activities designed for migrant women (such as language
classes or activities run by associations) as a channel for sharing
such information.
57. Cases of marital captivity can raise highly complex legal
issues, especially where they require knowledge of the legal systems
of other countries. Easily accessible legal advice is thus also
crucial.
58. Victims of marital captivity who are at risk of physical harm
from their spouse need shelter, together with their children. Such
shelter must be provided in a location that is not known to their
spouse or other potentially violent family members, in particular
where there is a risk of so-called “honour”-based violence.
59. Persons in situations of marital captivity may also be financially
dependent on their spouse – for example because the husband has
convinced or coerced the wife to leave the workforce in order to
take care of the home or raise children, or because the wife has
never entered the workforce in her country of residence, or because
she does not earn enough to be financially independent. Language
classes, training, reskilling and/or financial support may be needed
over an extended period in such cases.
60. During our webinar, Meltem Weiland pointed out that, given
the opportunity, women will build an independent life and a future
for themselves. However, the lack of regulations in this field results
in structural violence against women. She emphasised that women
need the system to grant them financial security and independence,
including autonomous residence permits, in order to ensure a violence-free
life. Otherwise, they will remain in unwanted and often harmful
marriages, due to the lack of resources or to fear of losing their children
or their residency.
61. Kim Lecoyer emphasised the need to use bottom-up approaches
to human rights, taking into account intersectional and context-specific
methods. This enables concrete internormative remedies to be developed, ensuring
that human rights are fully respected while taking into account
that religion plays a central role in many people’s lives.
62. In this context, Kim Lecoyer also underlined that it is crucial
to break the “wall of separation” between disciplines. Networks
of experts should be brought together to make access to religious
divorce easier and to train the different actors involved (professional,
legal and religious). Law and religion are not by definition opposed;
working together can not only build trust but also help to identify
more effective solutions.
63. Finally, as was emphasised by Jens van Tricht, Founder and
Managing Director of Emancipator and Coordinator of the MenEngage
Alliance, Amsterdam, marital captivity should be viewed in the light
of gender-based violence in general. It is vital to engage men and
boys in gender equality matters and gender justice, as they need
to be part of the solution. These issues are being explored in more
depth by our colleague Petra Stienen in her report entitled “The
role of men and boys in stopping gender-based violence”.
Note
9 Conclusions
64. Marital captivity can affect
anyone. Sometimes it can result from the application of different
legal provisions across different legal systems; sometimes it is
due to more restrictive rules regarding religious divorce than civil
divorce; very often, it involves manipulative or coercive behaviour
on the part of one spouse who refuses to release the other from
a marriage or marital situation to which they no longer consent.
In the vast majority of cases – because some legal systems and many
religious systems create a power imbalance in favour of the husband,
and because marital captivity is also a manifestation of gender-based
violence – the trapped spouse is the wife.
65. Persons in situations of marital captivity face a wide range
of human rights violations. They lose their autonomy, they often
have no financial independence, they cannot freely remarry, and
they may not be able to travel freely either. They are frequently
isolated, subjected to controlling behaviour and other forms of psychological
harm by their spouse, and women in particular may be at risk of
physical harm from their husband and from his family, or even their
own family.
66. States have a clear duty to act to put an end to these human
rights violations. Many actions taken as part of broader efforts
to combat gender-based violence can also provide solutions to marital
captivity. Other, more targeted actions may also be required, however.
67. I would like to emphasise in particular the following issues
and recommendations. First, even though it does not expressly prohibit
marital captivity, States must ratify the Istanbul Convention. Many
of its provisions are clearly applicable to cases of marital captivity
and can provide a powerful framework for tackling the human rights
violations at stake.
68. In view of the particular vulnerability of migrant women in
situations of marital captivity, who may be prevented from leaving
a harmful marriage due to the risk of losing resident status, States
should not deposit reservations to Article 59 of the Istanbul Convention,
and those that have done so should withdraw them.
69. States should also ensure that no-fault divorce is available
to everyone, and that divorce proceedings are accessible to all.
70. In addition, States should explore means of using their legal
system to combine civil divorce with an obligation to co-operate
with religious divorce proceedings, without placing trapped spouses
at risk of criminal proceedings if they seek to use these provisions.
71. There is clear scope for using existing contract law, notably
through the use of pre-nuptial agreements, to prevent situations
of marital captivity from arising. This is especially so where religious
law allows a husband to prevent or obstruct religious divorce proceedings.
States could certainly do more to support the work of religious
communities seeking to promote such practices.
72. Criminal law provisions prohibiting psychological harm, including
provisions applicable to coercive or controlling behaviour, can
also provide solutions. Legal professionals should be trained to
recognise such situations and to use these provisions effectively.
73. Solutions also need to be found in international private law
to prevent transnational situations of marital captivity from arising
due to inconsistencies between laws. States should step up their
efforts and diplomacy in this field. They should also ensure that
women migrating to a country to accompany their husband or in order to
marry are fully informed, before they leave their country of origin
and in their own language, as to their rights in the destination
country and about how to seek support if necessary.
74. As far as broader measures of prevention and protection are
concerned, the authorities need to work together with religious
communities to overcome religious attitudes and customary practices
that favour marital captivity. This needs to be done using a bottom-up,
internormative approach and involving interdisciplinary networks
of experts as well as activists already working within these communities
to combat marital captivity.
75. It is also essential that the full range of support measures
set out in the Istanbul Convention be available to women seeking
to escape situations of marital captivity, who need not only immediate
shelter but also financial security and independence, including
autonomous residence permits.
76. Finally, outreach is crucial as women in situations of marital
captivity are often isolated and unaware of their rights. States
should engage in efforts to raise awareness about marital captivity
and actively support organisations working to reach out to women
in this situation.
77. As I have emphasised through this report, we must put an end
to marital captivity and to the serious human rights violations
that it all too frequently entails. With awareness of the issues
and of the many successful lines of action that are already being
explored, and with concerted efforts to develop such actions further
and put them in place throughout our member States, I believe that
solutions to marital captivity are within our grasp.
