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Familierecht in Nederland in strijd met VN-conventies

20-07-2008 :: Om nog maar eens te benadrukken dat we écht niet alleen staan in onze bevindingen, maar dat we bewust worden genegeerd door de politiek: een gedeelte uit een rapportage over de implementatie van de VN conventie tegen vrouwendiscriminatie op overheidsbeleid uit 2006. Het is opgesteld door een lange lijst van Nederlandse organisaties. In deze rapportage wordt een groot deel van onze problemen aangekaart.

Het gaat hierbij om artikel 16 uit:

Taking Women’s Rights Seriously?

an examination of The Fourth Report by the Government of The Netherlands On Implementation of the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 2000-2004

(Sorry, alleen in het Engels beschikbaar.)

Article 16, family life

The gap between desired equality and actual inequality

In family law, equality of men and women is the aim. However, the actual situation of men and women in marriage and family relations is unequal. Overall, women care more for the children, have less paid work and income then men, and own less property. Ignoring this inequality in family law and court practice means that women are discriminated against. Family law used to be an area with a lot of sex-discrimination, both in the law and in (court) practice. The government made many changes to eliminate this discrimination, which is a good thing. However, NGOs are concerned that, in the effort to achieve equality, the actual inequality that still exists between men and women is ignored.

Parental control and caring duties

Since 1998, the joint legal custody of both the father and the mother regarding the children is maintained after divorce. It is up to the parents to make arrangements on the place where the children live, parental access, etcetera. The court will take decisions in areas where parents cannot come to agreement. The fact that, in most marriages, women carry the responsibility for caring for the children is not acknowledged after the divorce. Often, women feel that their care for the children is not well appreciated. During marriage their husbands did not want to assume their part in care-giving, and after the divorce they claim legal custody (control) and parental access. For most women, parenthood means the actual care for the children; unpaid. For a lot of men, parenthood means the power to make decisions about the children (including influence on the way the woman is establishing her life with the children), and the right of parental access. By disconnecting rights (legal custody and parental access) and duties (actual care), this inequality is maintained by court practice.

Alimony

Regarding alimony, the legislation increasingly takes the economic independence of both partners as a starting point. In practice, however, many couples agree on the woman quitting her jobs after marriage, in particular within the lower social classes. NGOs argue that it is good to want to achieve economic independence of women, but family law should not be the instrument to achieve this.

Divorce proceedings

The government is planning new legislation on divorce proceedings, in which agreements by the partners regarding the children will be a condition for getting divorced. This assumes equal positions and equal skills of the partners. In many cases this equality is a fiction. NGOs agree that equality of men and women is the aim, and is of great importance within family relations. But when the law and court practice take this equality as a starting point, where the factual situation is one of inequality, women are in fact discriminated against. Moreover, on the road to equality, the unequal position of men and women has to be taken into account, and have to be part of the weighing of interests in family law and family court. Factual equality is not achieved just by pretending it is there.

note: 95 An example of complete disconnection of rights and duties is the decision of the Higher Court of
Amsterdam of 27 January 2005, in which the legal custody was appointed exclusively to the father,
while the children remained with their mother, who cared for them.

The legislation on parental access does not acknowledge the interests of the caring parent

In the legislation on parental access, only the rights (family life, privacy) of the non-caring parent (mostly the father) and the child are recognized. This means that the interests of the caring parent are not taken into account in court decisions on parental access, while her family life and privacy are definitely at stake. In most cases, parental access of the father is a justified encroachment of the family life of the mother, but in some situations, for example in cases of domestic violence, it should be possible that the rights of the caring partner prevail over the rights of the
other parent. The total exclusion of the possibility to weigh the interests of both parents is discriminating against caring parents, and, because these are mainly women, discriminating against women.

Intimate partner violence plays hardly any role in family law

Although the Government is active in combating domestic violence, intimate partner violence against women hardly plays any role within family law and family court practice. In the Netherlands, at least 21% of the adult female opulation suffers from intimate partner violence committed by their male (ex) partner (see also art. 1, domestic violence).

Intimate partner violence and parental access

When the father of a child is not the legal parent, he can apply for parental access on the grounds of family life with the (unborn) child. When the child is born out of rape (committed by someone other then an intimate partner), family life is considered not to exist. But when the child is born out of a relationship in which the man used violence against the woman, this is considered irrelevant regarding the family life between the father and the child (to be born). The family life of the mother (which of course is affected by both the violence and the parental access) is not taken into account at all.

In general, violence against children is often a reason to deny (unsupervised) parental access to the children by the perpetrator. Violence between partners, on the contrary, is commonly considered as having nothing to do with the children, custody and parental access. This is the case even when children witnessed the violence, although it is known that witnessing domestic violence can be about as traumatic for children as being the actual victim. Moreover, the violence often continues after the divorce; the situation in which it occurs is often related to parental access. Being safe from violence is not only in the interest of the children, but also of the women involved. Research shows that single mothers with children form a high-risk group for domestic violence; often by ex-partners. These risks for both women and children hardly are considered as relevant in court decisions on parental access. Judges (in many cases advised by the Child Care and Protection Board) usually label the domestic violence as ‘relational problems’, which should be overcome by the parents in the interest of their children, instead of a serious crime of which the victim(s) need to be protected.

New legislation on divorce proceedings and domestic violence

The government is planning new legislation on divorce proceedings, in which agreements by the partners regarding the children will be a condition for getting divorced. This assumes equal positions and equal skills of the partners; in many cases this equality is fiction. Also in cases of intimate partner violence, in principal the victim has to negotiate with the perpetrator before she can get a divorce. Only under strict conditions (for example when a woman stays in a shelter), can she make a parental plan on her own and present it to the court. But even then, the parental plan has to include a provision for parental access; and the court can still refer the partners to mediation. NGOs are of the opinion that victims of domestic violence should not be obliged to mediate or negotiate with the perpetrator before being allowed to ask for a divorce.

In its report, the government states that experiences with mediation show that the question of which partner can be considered the weaker has little to do with gender, and a lot with emotional equality. But here also no word on domestic violence is uttered. NGOs are of the opinion that an evaluation of mediation in divorce cases should pay specific attention to domestic violence; both violence towards the children and violence towards the partner.

Research and training

This paragraph of the shadow report is based on information from judges, lawyers and workers within the Child Care and Protection Board; official data is not available. NGOs would welcome research on the way domestic violence is dealt with in the family court, as well as research on the prevalence of domestic violence in connection to arrangements for parental access and custody. In recent years, both family judges and advisors of the Child Care and Protection Board have become more sensitized to the seriousness of domestic violence. However, this should be
improved by the training of all family judges and advisors of the Child Care and protection board.

Law on Names still not in accordance with CEDAW

In its 2001 Concluding Observations the Committee considers that the present Law on Names contravenes the basic principle of equality, in particular art. 16(g), and recommends the government to review the Law on Names to bring it in accordance with the Convention. However, the legislation described in the current government report is the same 1998-legislation which underlay the Concluding Observations of the CEDAW-Committee of 2001. The state report fails to mention that no action has been undertaken to bring this law in accordance with the Convention, as required by
the Committee. It is still the father who has the ultimate decision if the parents cannot reach an agreement as to the family name of the child. This problem is the more urgent since the government intends to introduce the same rule for non-married couples (instead of the present provision which defines that in case of disagreement the child gets the name of the mother)96. Moreover, an evaluation of the effects of the new law, as announced in the previous state report, has not so far been carried out.

note: 96 Bill No. 29 353.

Sham marriages

One of the things that is not discussed in the state report concerns the continuing critique on the gender biased application of the Sham Marriage (Prevention) Act. Research shows that Dutch women with a foreign partner are more likely to be subject of checks based on this Act than Dutch men with a foreign partner.97 This is n accordance with the general stereotype that women are supposed to follow their husbands: if the couple chooses the country of the female partner as domicile this is regarded as suspicious. Moreover, a number of the indications that lead to
suspicious that a sham marriage exists are gender-biased, in particular the willingness to follow the partner to his/her country and the existence of a huge age difference.

note: 97 Betty de Hart, Thoughtless women. Mixed relations in nationality and immigration law, diss. KU

The Mudawwanah: problems for Moroccan women in the Netherlands

For Moroccan women, it is very difficult to have their Dutch divorces recognised by the Moroccan authorities, although the Mudawwanah, the Moroccan family law, has been improved in recent years. In most cases women have to have two divorces: one for the Dutch court, and one in Morocco, or at the Moroccan embassy. A Moroccan divorce takes a long time, and is very expensive. Moreover, under the Mudawwanah, women still do not have equal rights. Women who do not manage to get a Moroccan divorce face problems visiting Morocco. In the worst case they can be accused of adultery, or kidnapping their own children.

It is a task of the government to protect the rights of all its inhabitants, including women from Islamic countries. The government therefore has to take all appropriate measures to improve the situation of these women, and to do all it
takes to have Dutch divorces recognized in Morocco, and other Islamic countries.

note: 98 See Spijkerboer, pg. 16 ff.

De rapportage is ingediend namens de onderstaande instanties:

Algemene Onderwijsbond
BLinN
Commission for Filipino Migrant Workers
COS West en Midden Brabant
E-Quality
FemNet (Feministisch Netwerk Groenlinks)
FNV-vrouwensecretariaat Genderlinc Platform
Hivos HOM (Humanist Committee on Human Rights)
Humanitas (prostitution social work)
La Strada International (Prevention of Trafficking in Women in Central and Eastern
Europe)
IRENE (International Network Labour and Development)
Landelijk Bureau ter bestrijding van Rassendiscriminatie NJCM (Dutch Section of the International Commission of Jurists)
NVR (Dutch Women Council)
Oxfam Novib
Stichting Gender budgeting promotion
Stichting Kezban
Stichting Proefprocessenfonds Clara Wichmann Stichting voor Onderzoek en Voorlichting Bevolkingspolitiek Stichting Tegen Vrouwenhandel
Tiye International (Platform of organisations of black, migrant and refugee women)
TransAct (Expertise on gender based violence and gender specific health)
Vereniging voor Vrouw en Recht Clara Wichmann VON (Refugee Organisations Netherlands)
VVAO (Netherlands Associatoin of Higher Educated Women/International Federation of
University Women)
WGNRR (Women's Global Network for Reproductive Rights)
Wij Vrouwen Eisen

Het hele verhaal in pdf-vorm staat hier.

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