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.