Finding solutions for marital captivity
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 25 January 2023 (6th sitting) (see Doc. 15679, report of the Committee on Equality and Non-Discrimination,
rapporteur: Ms Margreet De Boer). Text
adopted by the Assembly on 25 January 2023 (6th sitting).
1. Marital captivity arises when a
person who has entered 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. It may concern cases where a marriage has been
concluded and is recognised under the civil law in force in the
country where the trapped spouse lives, as well as marital situations
that are not recognised under the applicable civil law. The phenomenon
is little known but is estimated to affect tens of thousands of
people – mostly women – in Europe every year.
2. Situations of marital captivity violate the human rights of
those that they affect. States therefore have a duty to combat this
phenomenon actively.
3. Marital captivity is an infringement on the trapped spouse’s
personal autonomy, a basic principle of human rights law. Persons
trapped in marital captivity lose their independence and their right
to self-determination. They often cannot start a new relationship
or remarry, especially where they may be considered by their community
to have committed adultery or bigamy. They may be prevented from
travelling, in particular if their marriage continues to have legal
effect in a country where the husband’s approval is necessary to
renew the wife’s passport. The impact on children can also be devastating,
as they grow up in an unsafe and unstable environment. Moreover,
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 so-called “honour”-based
violence, a particularly egregious offence which is prohibited under international
law.
4. The human rights issues at stake are wide ranging. Marital
captivity may, for example, lead to violations of Articles 5 (right
to liberty and security), 8 (right to respect for private and family
life), 12 (right to marry) and 14 (prohibition of 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. Although it is not expressly prohibited under the Council
of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence (CETS No. 210, “Istanbul Convention”),
marital captivity may also violate a wide range of provisions under
this convention. Moreover, many of the measures that States are
called upon to take under the Istanbul Convention in order to prevent,
prosecute and provide protection from all forms of violence against
women and domestic violence also provide highly effective means of
combating marital captivity.
6. To tackle marital captivity effectively and put an end to
the human rights violations that it causes, States must address
the full scope of situations potentially concerned. These include
cases where one party to a civil marriage is unable to put an end
to it, for example due to obstacles to obtaining a civil law divorce,
because of a conflict of laws between countries or risk of losing
residency status in the country where they live, or because of coercion
(notably psychological, physical or economic) exerted by the other
party. They may also include cases where a religious or customary
marriage has been concluded (with or without a civil marriage),
which one party is unable to end due to religious or customary law
or practices.
7. The Parliamentary Assembly welcomes the fact that some States
have begun to take measures to strengthen their legislation in this
field, and that many measures taken to implement the Istanbul Convention may
also provide solutions to some aspects of cases of marital captivity.
Civil society organisations, notably women’s rights organisations,
organisations working with migrant women and feminist religious
organisations, have also identified effective strategies for preventing
marital captivity and means of responding to the needs of women
unable to leave their marriage or marital situation.
8. The level of awareness of these important human rights issues
remains too low, however, and there is a pressing need to take measures
to prevent marital captivity and ensure that effective solutions
are readily accessible to victims wherever it occurs.
9. In the light of these considerations, the Assembly invites
Council of Europe member States as well as observer States and States
whose parliaments enjoy observer or partner for democracy status
with the Assembly:
9.1 as regards
strengthening the law in this area and its implementation, to:
9.1.1 ratify and implement the Istanbul Convention, if they
have not yet done so;
9.1.2 refrain from depositing reservations to Article 59 of
the Istanbul Convention and withdraw any reservations already deposited;
9.1.3 ensure that putting an end to a situation of marital captivity
will not cause the trapped spouse to lose their residency status;
9.1.4 step up their efforts and diplomacy to prevent transnational
situations of marital captivity from arising due to inconsistencies
between laws;
9.1.5 strengthen wherever necessary the criminal law provisions
applicable to coercive or controlling behaviour, as well as those
applicable to other forms of psychological, economic and physical
coercion, in order to ensure that they effectively apply to all
cases of marital captivity, whether or not there is a legally recognised
marriage and including where the spouses no longer live together;
9.1.6 train police and legal professionals to recognise situations
of marital captivity and to use these provisions effectively;
9.1.7 ensure that perpetrators of forms of marital captivity
that fall within the ambit of the criminal law are prosecuted, in
order to put an end to impunity in this area;
9.1.8 ensure that no-fault civil divorce is available to everyone
and that civil divorce proceedings are accessible to everyone, including
by making legal aid available to all persons in situations of marital
captivity, regardless of their residency status;
9.1.9 explore means of using the legal system to combine civil
divorce proceedings with an obligation to co-operate with religious
divorce proceedings, without placing the trapped spouse at risk
of criminal proceedings if they seek to use these provisions;
9.2 as regards preventive measures, to:
9.2.1 work
together with religious and other communities, 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, in order to overcome religious attitudes
and customary practices that favour marital captivity;
9.2.2 actively support the efforts of religious communities
and organisations that are seeking to promote the use of prenuptial
contracts as a means of preventing situations of marital captivity from
arising;
9.2.3 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;
9.2.4 support the activities of civil society organisations
working to reach out to and empower women most at risk of marital
captivity, notably women who may be living in isolation from the broader
community and migrant women whose residency status may be at risk
if they put an end to their marriage;
9.2.5 run awareness-raising campaigns on marital captivity and
make information readily accessible in all necessary languages about
what marital captivity is and the solutions that exist;
9.3 as regards measures to protect victims, to ensure that
the full range of support measures set out in the Istanbul Convention
is available to persons seeking to escape situations of marital
captivity and, in this context, to ensure in particular that:
9.3.1 adequate structures are in place to assist victims of
marital captivity, including telephone helplines for urgent calls
and accommodation and shelters for women and girls who have had
to leave their home;
9.3.2 support provided to victims of marital captivity effectively
guarantees their financial security and independence;
9.3.3 victims of marital captivity do not lose their residency
status but are granted autonomous residency permits;
9.4 as regards broader policy measures, to:
9.4.1 include
the fight against marital captivity in their national policies and
practices to prevent and combat violence against women and girls
and domestic violence;
9.4.2 collect accurate and comparable data on marital captivity,
broken down by gender and age, and carry out detailed studies on
the causes and frequency of this practice and on the associated
risk factors.
10. The Assembly expresses its support for civil society organisations
working to raise awareness of and combat marital captivity and calls
for these organisations to be given stable and long-term backing,
including financial resources.
