A/HRC/29/40
and guardianship and custody of children. Moreover, women had to pledge obedience to
their husbands, and marital rape and corporal punishment were permitted.
43.
Reforming family codes is essential to establishing, in national legislation, women’s
equal status in marriage and the family structure. Two types of process can be observed
with regard to the promotion of gender equality in family law.
44.
The first process is the elimination of discriminatory laws on the family and the
promotion of gender equality within secular law systems. This sort of legal reform took
place in some of these systems from the end of the nineteenth century, when many States
reformed their laws on the family by separating religion from the State and introducing
measures to promote women’s equality within marriage and the family, including the right
of married women to conclude contracts, own property, inherit, divorce, and have
guardianship and custody of children, on an equal basis with men. Secular family law
systems thus moved from being patriarchal to adopting a more egalitarian approach, which
now represents good practice in ensuring gender equality in the family. A recent example is
the Marriage Law in China, as amended in 2001, which nullified all bigamous marriages
and all marriages in which one of the parties had not reached the legal minimum age for
marriage, repealing traditionalist patriarchal laws on the family and affirming gender
equality in the family.32
45.
The second process is the transition from patriarchal religious family law to a
secular family law system that provides for gender equality in the family. Several States
where family law was based on patriarchal religious codes have introduced equality for
women in the family by revoking religious laws and regulating family affairs under secular
codes. In many European countries, family law was based on religious, primarily Christian,
laws, and all marriages were thus placed under religious jurisdiction. At the end of the
nineteenth century, all matters relating to family were placed under the secular jurisdiction
of the State, thereby removing the religious hegemony in this area.
46.
In some secular family law systems, elements of discrimination remain, for example
a lower legal minimum age for marriage for girls and discriminatory provisions on
inheritance rights, divorce and recognition of same-sex couples.
47.
Moreover, some secular family law systems allow family matters to be decided in
parallel religious or customary law systems, whether formal or informal. The implications
for women’s right to equality of such systems are discussed in the sections on plural legal
systems.
2.
State-enforced religious family law systems
48.
Several States have no secular family code and regulate personal status either by
integrating religious laws on the family into constitutional or legislative provisions or by
granting religious authorities or religious tribunals jurisdiction over personal status so that
they may apply the family codes derived from the sacred texts. Currently, a large number of
States that have Islam as their State religion, such as the Islamic and Arab republics,
regulate the personal status of all citizens by applying Islamic law from the Koran and the
Sunna. Although the notion of the equality of men and women before the law is often
incorporated in their constitutions, some States maintain that this equality does not apply in
the case of laws on the family and on marital or personal status. Some States that recognize
the legal competence of a majority religion in the State also grant non-majority religions
jurisdiction over their own communities of faithful, such as Lebanon (Muslim majority),
India (Hindu majority) and Israel (Jewish majority).
32
12
See A/HRC/26/39/Add.2, para. 17.
GE.15-07003