Marital captivity and Human Rights
Marital captivity, which describes a situation in which one or both spouses are not able to terminate a religious marriage and thereby is forced to remain married against her or his will, is an issue that has been receiving national and international attention.
Women are predominantly affected by a situation of marital captivity. This is because in some religions men can, for example, set aside their wives or have multiple wives. Women can only obtain a divorce if their husband or the religious authorities agree to the divorce. As a consequence, women are more likely to end up in a situation of marital captivity when their husbands refuse to cooperate to the divorce.
Unfortunately, however, effective solutions to end and prevent situations of marital captivity have yet to be found. A recurrent factor that stagnates this process concerns how marital captivity is perceived and is eventually dealt with by government authorities and communities. Within the ongoing debate on this issue, the focus is often placed on the religious aspects that cause situations of marital captivity and on finding solutions within the religious communities. The consequence hereof is that marital captivity to a religious marriage is often perceived as prominently being a religious affair and may, therefore, incentivise limited external intervention by for example State authorities.
In order to reach effective solutions for eradicating this phenomenon, a shift in how marital captivity is perceived and is addressed in society and in politics is imperative. In this regard, a human rights-centred approach offers solutions, both in terms of providing new perspectives and in terms of offering solutions. To begin with, a human rights-centred approach reveals that marital captivity is predominantly a human rights issue. Within a situation of marital captivity, trapped spouses are not able to exercise their autonomy to shape their lives as they wish and may experience restrictions in exercising their freedom of movement, right to health, right to private life, right to remarry and right to be free from violence and discrimination against women. A situation of marital captivity also creates and increases inequality between husbands and wives. Additionally, a situation of marital captivity also concerns and affects the religious rights of the spouses and of their religious communities.
Secondly, multiple actors are involved. Each of them has rights and interests that they seek to protect and often these are at odds with those of others. A human rights-centred approach allows for analysing and balancing these rights within a universally recognised framework in order to determine which of these rights should be given priority. Precedences of human rights monitoring bodies show that the advancement of gender equality and women’s rights are most likely to be given priority over religious manifestations that undermine gender equality and women’s rights.
Thirdly, a human rights approach enables the transformation of marital captivity into a human rights issue, which in turn becomes a State issue. States are responsible to respect and protect human rights, irrespective of any religious aspects that may play a role.
Finally, a human rights approach is solution oriented. States should create means to prevent new situations of marital captivity and should facilitate the dissolution of religious marriages. They should ensure that trapped spouses can access facilities and services that enable them to receive help and to enforce their rights (e.g. shelters, health care facilities, courts and so on).
|Written by Benedicta Deogratias - More blogs on Law bogs Maastricht|