Leiden Law Blog

Femmes for Freedom: fighting against marital captivity

Femmes for Freedom: fighting against marital captivity

The British government has announced that it will make forced marriage - often a problem for women from Muslim communities - into a criminal offence. The Netherlands is heading in the same direction, as the Dutch parliament will soon vote on a similar bill.

The Dutch foundation, Femmes For Freedom, has however focused its political campaign on expanding the legal definition of forced marriage, by not making it merely illegal to force a woman into marriage, but by extending the illegal character to situations in which a woman is denied the right to divorce - and thereby is forced to remain married. This is “marital captivity”, and Femmes For Freedom is fighting against it. 

The problem faced by victims of marital captivity, is that although the civil court has dissolved the marriage, they remain married under Islamic law, which is subject to the authority of Sharia councils. A woman without her spouse, or other male representation, is not accepted as an equal party in such a Sharia council procedure. Thus, if the woman wishes to divorce under this religious legal system, she needs permission from her husband. Unfortunately, the husband may and often does refuse to grant permission, which has grave consequences. Men who, under the endorsement of the Sharia-council, keep their (ex!-)wives in marital captivity, are often guilty of blackmail, threatened or actual violence, physical and emotional abuse, and child abduction. They demand of their wife the right to consummate the marriage, which is a euphemism for rape. Even worse, if the husband does agree to a divorce, he for ever maintains the right to withdraw his permission. This leads to a situation in which a divorced woman who has engaged in a new relationship is practically ‘guilty’ of extramarital sex - a crime punishable by death.

The Netherlands has ratified the Convention on the Elimination of All Forms of Discrimination against Women. Under this Convention, every Member State is obliged to promote gender equality. Under article 16, the State needs to take all appropriate measures to also eliminate discrimination against women at the inception of, and during, marriage and divorce.

Now Sheik Al-Haddad advocates the establishment of a Sharia council in the Netherlands as “it is the duty of the Dutch government to take care of its citizens”. It is indeed correct that the Dutch government has a duty to take care of its citizens. However the way Al-Haddad interprets this duty is gravely mistaken. As the Sharia council refuses to grant women the same rights as their male counterparts, it is the duty of the Dutch State to take all appropriate measures to make sure women in this country are not subjected to an institution which violates their right to equal treatment.

Hopefully the Parliament will adopt Femmes For Freedom’s amendment on marital captivity, so that we are one step closer to eliminating all forms of discrimination against women. Furthermore, instead of acknowledging informal religious courts and contributing to the development of legal pluralism, we should focus on promoting fundamental values of the (inter)national legal order, such as gender equality. If we are to allow a Sharia council in the Netherlands, however, we will be a long way from achieving this. 

3 Comments

Ronald
Posted by Ronald on July 30, 2012 at 03:42

I only know some of my classmates(Chinese) in Dutch cosrue are doing medical PHD in Leiden University and Amsterdam University. I am studying in Leiden University but in the Humanities faculty. I know Leiden’s medical faculty is a very good choice for medical student. However, the tuition fee is very expensive. If you are out-standing, you can apply CSC (China Scholarship Council,the Chinese government support your studies abroad). And of cosrue, there are other kinds of scholarship you can apply. Does it help?

MGP Glas
Posted by MGP Glas on June 17, 2012 at 12:55

Interesting blog, but I miss a step in your reasoning. From what you wrote I fail to see the real problem for a Dutch moslima who is ‘trapped’ in a legally void marriage. The ‘grave consequences’ you speak of, are in your reasoning, linked to an endorsement of the men by a Sharia council. As we all know, there are no (formal) sharia councils in The Netherlands. So what then is the problem? If the woman is legally divorced she can utilize all the legal means at her disposal to ‘solve’ problems with her ex-husband, recognized by the religious community or not. Better yet, a formal sharia council may actually contribute to acceptance of a legally void marriage if it were there. Indeed, the Jewish community has had their own talmut courts in the Netherlands for years and the issue that only the man can initiate a ‘get’ has not been seen as a problem. A Sharia court is fine, as long as it is voluntary and the Dutch courts have more power to ‘overrule’ them.

janna cove
Posted by janna cove on June 14, 2012 at 13:22

the sheik must recognise that dutch law supercedes shariah law there can only be 1 law in a country any immigrant has to realise this.cant have one section of women subject to strict control of every aspect of their live and the other having freedom s to think dress etc as they wish

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