CEDAW Legislative Compliance Review LEGISLATIVE COMPLIANCE OF TUVALU

358 LEGISLATIVE COMPLIANCE OF TUVALU 9 Legislative Compliance of Tuvalu

8.1 Overview disability. The Constitution of Tuvalu guarantees the rights and freedoms of citizens This Chapter examines and assesses Tuvalu’s in most of the areas required by CEDAW. legislative compliance with CEDAW. Tuvalu ratified However, whilst the Constitution guarantees CEDAW on 6 October 1999 obliging it to work men and women ‘freedom under the law,’ it towards the modification of its constitution and does not guarantee equal benefits or outcomes legislation to accord with the articles of CEDAW. as required by CEDAW. The Constitution also However, it is recognised that legislative compliance does not ‘deny the existence, nature or effect of will be achieved through gradual and incremental cultural, social, civic, family or religious change. The assessment of Tuvalu’s compliance is obligations’ The Constitution of Tuvalu based on the indicators identified in Chapter One contains an anti-discrimination clause but it and should be read in conjunction with the does not include sex as a protected ground. This commentary on each indicator included in that means discrimination against women is lawful Chapter. In sum, Tuvalu has achieved full in Tuvalu and consequently, domestic laws compliance with 21 of 113 indicators, partial which discriminate against women although compliance with 31 indicators and no compliance non-complaint with CEDAW, are not in breach in relation to the remaining 61 indicators. The next of the Constitution. section provides a brief synopsis of the findings of the review. Following the synopsis is a series of 2. Articles 2 and 3 together mandate the tables, each related to an article of CEDAW, and each establishment by legislation of national bodies containing the relevant indicators, the level of and machinery to monitor the implementation compliance achieved by Tuvalu (i.e. yes, no or partial of law and policy to foster the advancement of compliance), the relevant legislation and finally women. Tuvalu has not established such a where required, a brief commentary explaining how mechanism. the legislation does or does not meet the indicator. 3. Article 2 condemns discrimination against It should be noted that the Tuvalu legislative review women in all its forms and obligates States was conducted using all materials available at the Parties to eliminate discrimination against time, and that although every effort was made to women without delay. General obtain the most recent and up-to-date legal material, Recommendation 19 issued by the CEDAW it is possible that there will be errors or omissions. Committee makes explicit that the definition of discrimination includes gender violence and 8.2 Synopsis of Findings recommends that ‘sanctions, penalties and compensation’ be introduced in relation to 1. Article 1 (which defines discrimination) in conjunction with Article 2 requires States gender based violence. Sexual assault is a form Parties to guarantee a range of fundamental of gender violence as it is overwhelmingly rights and freedoms in their constitutions perpetrated against and women, and including substantive equality and freedom therefore must be prevented and remedied, as from discrimination on grounds of sex, marital far as possible, through legislative means. status, sexual orientation, HIV status and Tuvalu has legislated against sexual assault. 359 LEGISLATIVE COMPLIANCE OF TUVALU

The sexual assault laws, however, provide perpetuates the myth that a victim’s previous inadequate protection for the range of sexual sexual relationship with either the accused or violations perpetrated against girls and others makes it more likely she consented. women. All sexual offences require penile Corroboration (independent evidence such as penetration (except indecent assault which that of a witness that connects the accused only attracts an inadequate maximum 5 year person with the crime) is a common law rule sentence). The requirement of penile that requires a judge to advise the jury that it is penetration for most sexual offences excludes dangerous to convict the accused on many of the ways in which women are sexually uncorroborated evidence. Proof of resistance is violated, and is not compliant with CEDAW. a common law rule which requires victims to Violations perpetrated against girls under 15 establish that they physically resisted the are punished more seriously in Tuvalu, whilst perpetrator otherwise consent may be inferred. the violation of an older is treated less It is discriminatory because physical resistance seriously, again in non-compliance. Thus, the may be an unrealistic expectation of a victim penalty for the ‘defilement’ of a girl aged under against a strong or armed perpetrator, and does 13 is life imprisonment whilst defilement not take into account how fear and power against a girl aged between 13 and 15 is 5 years. imbalances may immobilise the victim. Although an assault against a young girl may Compliance with CEDAW requires that have more serious consequences particularly if legislation prohibits the use of all three rules. perpetrated by a person in a position of trust, In non-compliance with CEDAW, Tuvalu has the vast disparity between the sentences not legislated against the use of prior sexual appears unjustified and perpetuates an conduct, the necessity for corroboration in erroneous assumption that it is less serious and sexual offence prosecutions or the requirement harmful to assault a ‘more mature’ girl. for proof of resistance by the victim.

4. Incest is a gendered crime since it is primarily 6. Although there is generally no defence in sexual perpetrated against women and girls by men assault prosecutions in Tuvalu for the accused in the context of unequal power relations. to claim that he did not know the girl was not Criminalising all parties to an incestuous sexual of legal age, there is an exception in relation to a encounter is contrary to CEDAW and may charge of defilement of a girl between the ages dissuade a victim of an incestuous sexual of 13 to 15. This places the onus on the minor to assault from reporting it in fear of being charged establish her age rather than the perpetrator with an offence. In Tuvalu, in non-compliance to ascertain age and is non-compliant with with CEDAW, incest is an offence for a girl aged CEDAW. Consent is not available as a defence 15 years or above attracting a penalty of 7 years. in relation to girls under 16. This means in effect that the defence is available in relation to sexual 5. Three discriminatory common law rules have assaults including rape on girls over 15 and this historically made it difficult for prosecutions is non-compliant with CEDAW which against sexual assault offenders to succeed and stipulates 18 as the age of adulthood. are contrary to CEDAW. The admission of the prior sexual history of a victim in order to 7. Minimum sentences and mandatory establish that she consented to the sexual act in prosecution ensure that sexual violence against question is a common law rule which women is treated seriously. Tuvalu, however, 360 LEGISLATIVE COMPLIANCE OF TUVALU

does not have mandatory prosecution or constitutions and legislation. Whilst there is a minimum sentences for sexual assault offences. special measures provision in the Tuvalu In addition, the legislation specifically provides Constitution for the advancement of ‘any for customary law to affect criminal sentencing person or any group’ it is unclear if it extends to which may reduce a sentence further if there the advancement of women. It is crucial to has been forgiveness. Bail, which should not be incorporate special measures for women granted if there is any risk to a sexual assault because they are an equality measure with real victim, is available as a matter of entitlement potential to redress historical discrimination unless the charge is murder. and achieve substantive equality for women.

8. Although General Recommendation 19 (which 11. Article 5 requires States Parties to abolish or concerns ) identifies modify customary practices that discriminate domestic violence as a form of discrimination against women. In Tuvalu the Constitution that inhibits women’s ability to enjoy rights provides for the protection of ‘Tuvaluan values, and freedoms on a basis of equality with men, culture and tradition’ which in the absence of Tuvalu has not yet incorporated domestic an anti-discrimination clause on the ground of violence offences into its criminal laws. This is sex, permits the continuation of customary required for compliance with CEDAW. practices which discriminate against women.

9. Infanticide refers to the killing of a child by its 12. Article 6 requires States Parties to suppress all (in contrast to abortion which refers to forms of trafficking in women and the the destruction of a foetus). Full compliance exploitation of women in prostitution and with CEDAW requires that an offence of Articles 2 and 11 require the elimination of infanticide replaces a charge of murder or discrimination against women in employment. manslaughter and has a reduced sentence, Cumulatively, these articles mandate both the recognising the societal pressures that lead protection of sex workers from exploitation women to kill their children. Women who do whilst also affording them the rights and so should not be held accountable to charges of protections of other workers. The act of murder or manslaughter. An offence of soliciting is not an offence in Tuvalu for sex infanticide is contained in the Tuvalu criminal workers in compliance with CEDAW. However, law legislation but it reduces a charge of murder the Tuvalu legislation criminalises the aiding to manslaughter, rather than replacing both and abetting of sex work and the operation of murder and manslaughter with a separate organised premises. Experience and research offence and a corresponding less severe penalty. shows that organised premises rather than Further, the definition of infanticide is restricted street work is safer for sex workers. Legalising to the effects of lactation and birthing. Such a brothels and implementing work conditions view of the causes of infanticide has been largely and safeguards that are present in other discredited by research, which instead has workplaces (such as regulated standards of linked such killings to post-natal depression occupational safety, standard rates of pay, caused in large part, by the social pressures of parental leave, sick leave) would therefore raising children. provide greater safety for sex workers and the community. Although Tuvalu has adopted a 10. Article 4 requires that special measures rigorous approach to the exploitation of girls provisions be introduced into national under 13 with a penalty of life imprisonment, 361 LEGISLATIVE COMPLIANCE OF TUVALU

its approach to girls over 13 and women who It also assumes that should the marriage break have been forced into sex work without their down a will be left without any means consent or trafficked to other locations both of support, but men will not. The opportunity within the country or abroad attracts a penalty to return to their place of origin should not be of only 2 years and is insufficient to comply contingent on the breakdown of a marriage with CEDAW’s mandate. either for men or women but upon their own choice to return to their place of origin. 13. Article 7 obligates States Parties to take all appropriate measures to eliminate 16. Article 10 obligates States Parties to ensure discrimination in women’s political and public women have equal rights and opportunities in lives. Universal suffrage and equal legal rights education. The provision of compulsory to political representation for women has been education is essential to ensure girls are equally achieved in Tuvalu. However Tuvalu which, prioritised and not discriminated against in currently has no female members of parliament early education. Education is compulsory for out of a total of 15 seats, and has not introduced males and females in Tuvalu until the age of 15 special measures such as quotas to ensure ensuring that the education of males over higher numbers of women enter parliament females is not prioritised. However, since and participate in the governance of their females do not participate equally in tertiary countries. education in Tuvalu full compliance with Article 10 requires the government to adopt 14. Article 8 requires States Parties to ensure that special measures for the advancement of women have equal opportunities to represent women in education which it has not yet done. their governments at the international level. Although there is no legal barrier preventing A prohibition on the expulsion of pregnant women from representing their governments students which is required for compliance with in Tuvalu, the low numbers of women who do CEDAW so as to ensure that girls are not so necessitates the introduction of quotas to discriminated against by educational raise participation. institutions due to their pregnant status, does not exist in non-compliance with CEDAW. 15. Article 9 requires States Parties to eliminate discrimination in the areas of nationality, 17. Article 11 obligates States Parties to eliminate citizenship and domicile. Women and men are discrimination in employment. Women in treated equally under citizenship law in Tuvalu Tuvalu have many of the same rights in with one exception. A woman, but not a man, employment as men. However, there are a who has surrendered her Tuvaluan citizenship number of aspects of employment law in Tuvalu upon marriage to a national of another country, which discriminate against women and do not must prove the breakdown of her marriage to comply with CEDAW, including the absence of regain citizenship. Although this provision is anti-discrimination provisions in the intended to ‘protect’ women who have forgone employment legislation and the restriction of their citizenship to relocate to their husband’s women’s employment choices by banning them place of residence, the provision is weighted from night work and working in mines. with discriminatory assumptions. It assumes Although there are a number of exceptions, such that women will relocate to a non-national protectionist provisions interfere with women’s husband’s place of residence, but men will not. autonomy and place unreasonable restrictions 362 LEGISLATIVE COMPLIANCE OF TUVALU

on their right to choose professions and 20. The CEDAW Committee in General employment. Recommendations 12 and 19 has identified sexual harassment in the workplace as a form 18. In the area of maternity leave, the public service of discrimination against women. General sector in Tuvalu offers more generous Recommendation 19 defines sexual harassment allowances than the minimum standards as unwelcome sexually determined behaviour granted in the private sector. Although neither such as physical contact and advances, sexually sector fully meets the standards of 14 weeks coloured remarks, showing pornography and paid maternity leave recommended by CEDAW sexual demands whether by words or actions. and the International Labour Organisation (the Such actions can be humiliating for the recipient ILO recommends a period of 14 weeks and are discriminatory when they create a hostile work environment. Protection from maternity leave and CEDAW recommends that sexual harassment is absent in Tuvalu and there this period be paid) the public service comes is no scope for a remedy under the criminal code closest with female civil servants entitled to 8 as permitted in the Solomon Islands; or in weeks of maternity leave on full pay and allows human rights legislation as available in Fiji; or for an extended period of (unpaid) leave on in public sector legislation as provided in production of a medical certificate. The private Papua New Guinea. sector, however, only provides for 12 weeks leave on not less than 25% of the female worker’s 21. Article 12 requires States Parties to ensure that women have access to health care services wage. Further, it is compulsory for women to including those related to family planning. take 6 weeks leave after childbirth denying Abortion is criminalised in Tuvalu with a severe them the option of returning to work if they penalty of life imprisonment and although choose. Finally, protection from dismissal ends abortion can be lawfully carried out to save a upon the expiry of the approved maternity mother’s life, women do not have access to safe leave period, leaving women in precarious abortion facilities as of right. The failure to positions in relation to job security if they decriminalise abortion and to provide safe require (or choose) to take further leave. accessible facilities for women who require abortions endangers their health and that of 19. Whilst the legislation creates a general duty on any child born subsequent to a failed abortion employers to provide ‘safe’ working conditions, since research indicates that when a mother Tuvalu has not introduced any specific health dies (including as a result of unsafe abortion) protection for pregnant workers. Breastfeeding the chance of survival of all surviving children are provided with breaks of half hour under 5 is significantly reduced. duration twice daily. However, these conditions 22. Article 13(b) of CEDAW provides that women are insufficient to enable breastfeeding mothers should be afforded equal rights to bank loans, to balance the needs of young children with the mortgages and other forms of financial credit demands of work. Similarly, the absence of any free from discrimination. Although there is no state or employer funded childcare facilities in legislative barrier to women in Tuvalu from Tuvalu is likely to accentuate the difficulties accessing such services, discrimination nursing mothers face in the workplace. continues to hinder women from obtaining 363 LEGISLATIVE COMPLIANCE OF TUVALU

credit and loans to purchase property or minimum age of marriage for both males and businesses, thus interfering with their females. Tuvalu mandates an equal autonomy and ability to earn a livelihood. marriageable age for males and females, Article 13(c) of CEDAW requires that women however, it is 16 and below the recommended have an equal right to participate in recreational age of 18. In the marriage of minors the activities, sports and all aspects of cultural life legislation privileges the consent of the father and there are no legislative barriers in Tuvalu over the mother in non-compliance with preventing women from doing so. CEDAW. In compliance with CEDAW the legislation does require the registration of 23. Article 14 obligates States Parties to put in place marriages and bigamy is a criminal offence, measures to ensure the equality of rural women. however these laws are not applicable to Rural women often play a significant role in customary marriages. the economic survival of their families and communities although they are frequently 27. Fault based divorces, which requires proof of a disadvantaged in areas such as land ownership, matrimonial offence such as desertion or health, education and housing to name a few. habitual rape, place women in the difficult The achievement of substantive equality for position of having to provide evidence of rural women and compliance with CEDAW situations that may be humiliating, requires temporary special measures embarrassing, or that may interfere with their provisions to be incorporated into both the dignity and privacy. Women also face Constitution and legislation. Tuvalu, however, discrimination in proving fault, particularly has not done so as yet. cruelty and adultery if they choose not to be witnesses or they do not wish to attend court 24. Article 15 requires States Parties to guarantee proceedings. Divorce in Tuvalu whilst using women equality before the law and equal rights fault based criteria (including adultery, to participate in all aspects of civil life. Tuvalu desertion and cruelty) in an evidentiary guarantees citizens ‘freedom under the law’ but capacity, can be achieved on the basis of this does not amount to a guarantee to women ‘complete breakdown’ without attribution of of equality before the law. Further, this freedom fault and is therefore in partial compliance with is subject to ‘cultural, social, civic, family and CEDAW. religious obligations’. However, there are no legal barriers in Tuvalu to women’s 28. The CEDAW Committee in General participation in court and tribunal processes, Recommendation 19(23) (which deals with nor are women denied the right to conclude violence against women, in relation to Articles contracts and administer property. 16 and 5 of CEDAW) states that a lack of economic independence or an inability to gain 25. Article 16 obligates States Parties to remove custody of their children upon separation forces discrimination in family and personal laws many women to stay in violent or difficult including marriage, separation, divorce, relationships. Tuvalu does provide for maintenance, child custody, property division, maintenance orders during separation and paternity and inheritance. after divorce for both children and spouses. 26. The CEDAW Committee in General However, the basis on which maintenance is Recommendation 21 has nominated 18 as the provided is left largely to the discretion of the 364 LEGISLATIVE COMPLIANCE OF TUVALU

court with the broad criteria of ‘resources of an unmarried mother automatically loses the defendant’ and ‘reasonableness’ The custody of her child at the age of two years to standards recommended by CEDAW, i.e., the the father (provided he admits paternity and needs and means of both parties, the financial wishes to have the custody of the child). The commitments of both parties to themselves and latter situation although intended to protect the others, their respective capacities to earn and inheritance rights of the children of unmarried the needs of any children for whom parents may not represent the best interests of maintenance is sought, are unlikely to be the child, and discriminates against mothers. prioritised. 31. In General Recommendation 21 the CEDAW 29. In General Recommendation 21, which deals Committee states that the right to own, with equality in family relations, the CEDAW manage, enjoy and dispose of property is central Committee states that the division of marital to a woman’s right to enjoy financial property should include recognition of non- independence. Women in Tuvalu do not enjoy financial contributions during a marriage such equality in relation to the ownership, as raising children, caring for elderly relatives, administration, enjoyment and disposition of and discharging household duties. Tuvalu does property since patrilineal inheritance is given provide for the division of property after legislative status. Thereby giving men control separation and divorce, however, the basis on of many aspects of land and property. which division is determined is what is ‘necessary and desirable’ and must not be 32. Article 16 requires that inheritance laws should inconsistent with custom. The standards apply equally to males and females. The Tuvalu recommended by CEDAW, i.e., the needs and Land Code governs inheritance law, specifying means of both parties, the financial different rules for different islands based on commitments of both parties to themselves and custom. Generally, succession is along others, their respective capacities to earn and patrilineal lines and in a number of instances, the needs of any children for whom sons are favoured over daughters in relation to maintenance is sought are unlikely to be both land and important resource rights such prioritised. as fishponds.

30. The best interests of the child as the paramount 33. A series of tables detailing Tuvalu’s compliance consideration is universally accepted as the with CEDAW is provided in the following pages. principle on which custody determinations Each table relates to an article of CEDAW and should be based, according to Article 16(f) of contains the applicable indicator(s), the level of CEDAW. Although Tuvalu has adopted the compliance achieved, the relevant legislation recommended standard of the best interests of and finally where required, a brief commentary the child as the paramount consideration in explaining how the Tuvalu’s legislation does or custody disputes after separation and divorce, does not meet the indicator.

365 LEGISLATIVE COMPLIANCE OF TUVALU Tuvalu: Detailed Analysis of Indicators

ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

1.1 Does the Constitution Partial Constitution of Tuvalu 1986. The rights protected guarantee fundamental • s 11. Every person is entitled ‘whatever include most of those rights and freedoms to men his sex’ to the fundamental rights and required by CEDAW. and women equally freedoms protected in the Constitution. There is therefore including in the political, • s 16 - 28. Life, personal liberty, slavery substantial compliance economic, social, cultural, and forced labour, inhumane treatment, with this indicator but civil or any other field? property rights, privacy of home and • The right to the property, protection of law, freedom of highest attainable belief, freedom of expression, freedom of standard of physical assembly and association, freedom of and mental health is movement, freedom from discrimination. not a guaranteed right. • Substantive equality is not a guaranteed right. 1.2 Is there a constitutional No guarantee of substantive equality between men and women? 1.3 Does the Constitution No Constitution of Tuvalu 1986, s 27. Although Sex discrimination is contain an anti- there is an anti-discrimination clauses sex is not therefore legal. discrimination clause on the included in the list of grounds of discrimination. ground of sex/gender? 1.4 Does the Constitution No contain an anti- discrimination clause on the ground of marital status? 1.5 Does the Constitution No contain an anti- discrimination clause on the ground of sexual orientation? 1.6 Does the Constitution No contain an anti- discrimination clause on the ground of HIV status? 1.7 Does the Constitution No contain an anti- discrimination clause on the ground of disability? 1.8 Does the breadth of the anti- No discrimination clause encompass direct and indirect discrimination?

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.9 Does the anti-discrimination No Constitution of Tuvalu 1986, s 38. Although the Constitution clause bind public authorities does extend to public and institutions? authorities and institutions, the failure to include sex as a ground of discrimination makes this provision non-compliant with CEDAW. 1.10 Does the anti-discrimination No Constitution of Tuvalu 1986, s 38. Although the Constitution clause bind any person, does extend to any organisation or enterprise? person, organisation or enterprise, the failure to include sex as a ground of discrimination makes this provision non-compliant with CEDAW. 1.11 Are sanctions imposed for Partial Constitution of Tuvalu 1986, s 40 (1.) The The absence of a sex anti- breach of anti-discrimination High Court may make any orders, issue any discrimination clause provisions? writs and give any directions that it thinks limits the effectiveness of appropriate for enforcing or securing the these sanctions for enforcement of the constitution. women. However, the provision of sanctions for any denial of their fundamental rights and freedoms provides partial compliance with this indicator. 1.12 Are there specific domestic No There is no specific domestic violence These provisions do not violence offences in the protection. Two offences in the Penal Code embrace the variety of criminal law legislation (Penal [Cap 8] 1978, could be used situations that constitute Code)? • s 237. Common assaults - 6 months domestic violence and fall imprisonment. well short of compliance. • s 238. Assaults causing actual bodily harm Low sentences also - 5 years imprisonment. detract from the seriousness of domestic violence. 1.13 Is stalking a criminal offence? No 1.14 Is a restraining order available No No legislative power to in situations of sexual and exclude violent partner domestic violence regardless from home or person. of marital status? 1.15 Is there mandatory No prosecution for domestic violence offences?

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.16 Does the criminal law Partial Penal Code [Cap 8] 1978. There are a range of Although rape and legislation contain a broad sexual offences. defilement of a girl under range of sexual assault • s 128. Rape - life imprisonment. 13 is treated seriously, the offences graded on the basis • s 130. Attempted rape - 7 years. light sentence for of seriousness to the victim? • s 133. Indecent assault - 5 years. defilement of a girl 13-15 • s 134. Defilement of a girl under 13 - life implies that a sexual assault imprisonment. is not as serious if the girl • s 135. Defilement of girl 13 - 15 - 5 years. is older and is discriminatory. The absence of offences that include the range of violations experienced by women make the regime inadequate. 1.17 Does the definition of rape and/ No Penal Code [Cap 8] 1978, s 161. Not necessary Penetration is confined to or sexual assault offences to prove the completion of the intercourse by penile penetration and include penetration of non- the actual emission of seed but the intercourse does not include the range penile objects to anus, vagina shall be deemed complete upon proof of of ways that women can and mouth? penetration only. be sexually violated. 1.18 Is there an offence of incest No Penal Code [Cap 8] 1978, s 156(5). Any female There is an offence of for girls and women? If there person of or above the age of 15 years who incest in the Code which is an offence of incest for girls with consent permits her grandfather, father, means that women and and women, then there is no brother or son to have sexual intercourse with girls over 15 can be compliance with this indicator. her (knowing him to be her grandfather, father, charged with an offence. brother or son, as the case may be) shall be Therefore there is no guilty of a felony - 7 years. compliance with this indicator. These offences are discriminatory because: • No girl under 18 should be charged with any sexual offence and consent should be irrelevant. • An offence of incest against women and girls fails to recognise the power imbalance between girls and women and male relatives. Incest is typically perpetrat- ed by men against girls and women in non-consensual and coercive circumstances.

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.19 Have the terms indecency, No Penal Code [Cap 8] 1978. The terms defilement, These terms suggest that carnal knowledge, defilement insulting the modesty, carnal knowledge and girls and women are spoilt and insulting modesty been indecency are used throughout the sexual or damaged by sexual removed from the criminal assault offences. offences. This is law legislation? discriminatory and instead the offences should convey the invasion of the right to personal autonomy. 1.20 Is consent specifically defined Partial Penal Code [Cap 8] 1978, s 128. Consent is This definition does not in the criminal law legislation not established if it is obtained by force or by embrace the range of outlining coercive circum- means of threats or intimidation of any kind, or situations in which women stances? by fear of bodily harm, or by means of false may consent with coerc- representations as to the nature of the act, or in ion, e.g. in particular, a the case of a married woman, by impersonating threat to a third party. A her husband. non-exhaustive list would achieve full compliance. 1.21 Is there a legislative No prohibition on the use of prior sexual conduct to establish consent? 1.22 Is there a legislative No prohibition on the requirement for corroboration? 1.23 Is there a legislative No prohibition on the requirement to provide proof of resistance? 1.24 Is there a defence of honest No Penal Code [Cap 8] 1978, s135. It is defence to To be compliant with this and reasonable belief that the a charge of defilement of girl between 13 and indicator, there should be victim is of legal age? If there 15 that the person charged had reasonable cause no defence available to the is no defence of honest and to believe and did in fact believe that the girl perpetrator of ‘honest and reasonable belief, then there was of or above the age of 15 years. reasonable belief that the is full compliance with this victim is of legal age’. indicator. Whilst there is no defence in relation to girls under 13, the defence in relation to the defilement of girls between 13-15 places the onus on the minor to reveal her age rather than on the perpetrator to ascertain her age. This is discriminatory. 1.25 Is a defence of consent No Penal Code [Cap 8] 1978, s 134, s 135. Consent Compliance with the unavailable in relation to a is not a defence for girls 15 and under. indicator requires that victim under 18? consent is not a defence in relation to any girl under 18.

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.26 Is there an exemption from Yes To be compliant with this prosecution for marital rape? If indicator, men should not yes, then there is no be exempted from being compliance with this indicator. prosecuted for marital rape. If the Penal Code contains a law which protects men from being charged with marital rape, then there is no compliance with this indicator. The Penal Code does not exempt husbands from prosecution for marital rape and Tuvalu is therefore in full compliance with this indicator and with CEDAW. 1.27 Is there mandatory prosecution No for sexual offences? 1.28 Is bail unavailable for sexual No Island Courts Ordinance [Cap 3] 1965. No offences if there is risk to victim? specific provision for victims of sexual assault. 1.29 Are there minimum sentences No The sentences for all sexual offences designate The failure to designate for sexual offences? maximum but not minimum sentences. minimum sentences means that sexual offences can be given low sentences which do not reflect their gravity. 1.30 Is there a provision in the No criminal law legislation which states that customary practices of forgiveness shall not affect criminal prosecution or sentencing? 1.31 Is there legislative provision No for compensation for victims of sexual and domestic violence? 1.32 Does the criminal law Partial Penal Code [Cap 8] 1978, s 199. Where a woman Murder can be reduced to legislation allow for infanticide by any wilful act or omission causes the death manslaughter, however, to replace a charge of murder of her child of under 12 months in circumstances this is still an offence with or manslaughter? where the balance of her mind was disturbed sentence of life imprison- because she had not fully recovered from the ment. Infanticide should effect of giving birth to the child or by reason replace both murder and of the effect of lactation and the offence would manslaughter and carry a have amounted to murder, she shall be guilty light sentence. of infanticide, and be dealt with and punished as if she had been guilty of manslaughter of the child.

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.33 Does the definition of No As in 1.32. Research suggests that infanticide include women who kill their environmental and social children do so in part stresses? because of the environ- mental and social stresses of raising children. Basing infanticide solely on the perceived hormonal and biological weaknesses that women suffer during childbirth and lactation does not comply with this indicator.

ARTICLE 3: GUARANTEE OF BASIC HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

3.1 Is there legislation No establishing national human rights machinery charged with promoting and protecting human rights including women rights? 3.2 Is there legislation No A Ministry of Women’s establishing a funded body to Affairs has been monitor the implementation established in the of non-discriminatory law and Ministry of Home Affairs policy for the advancement and Rural Development. of women? The Ministry has some powers to monitor discriminatory law and policy but without legislative authority it is susceptible to removal in times of political or economic upheaval.

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ARTICLE 4: ACCELERATION OF EQUALITY BETWEEN MEN AND WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 4.1 Does the Constitution contain Partial Constitution of Tuvalu 1986, s 27(3)(f). It is unclear whether the a temporary special measures Allows affirmative action ‘by which any person affirmative action clause provision? or any group may be given favourable can be used to advance treatment or unfavourable treatment which, the position of women. having regard to the nature of the person and Sex is not a protected special circumstances is reasonably justifiable ground and arguably sex in democratic society having a proper respect discrimination is lawful. for human rights and dignity’. However, special meas- ures to advance the position of men are also lawful under this line of argument. Full com- pliance requires the legislation to expressly provide special measures for women and girls. 4.2 Are special measures exempt No from discrimination on the basis of sex, marital status, sexual orientation, disability and HIV status?

ARTICLE 5: SEX ROLES AND STEREOTPYES

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 5.1 Is there a provision in the No Constitution of Tuvalu 1986, The Constitution express- Constitution which gives • s 4(3). The Constitution is to be interpreted ly recognises custom. In precedence to a constitutional to achieve the aims of a fair and democratic the absence of a guarantee of equality if there is government ‘in the light of reason and guarantee that custom a conflict between custom and experience of Tuvaluan values’. does not have precedence equality law? • s 29(1). Tuvalu is an Independent State in over equality between part based on Tuvaluan values, culture and men and women and in the tradition (4) It may therefore be necessary absence of sex as a in certain circumstances to regulate or place ground of discrimination, some restrictions on the exercise of those Tuvaluan values that rights, if their exercise (b) may directly discriminate against threaten Tuvaluan values or culture. women are constitutional.

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ARTICLE 6: EXPLOITATION OF WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

6.1 Is the act of soliciting Yes No offence for soliciting decriminalised? for females. 6.2 Is aiding and abetting No Penal Code 1965. Range of offences: The legislation crimi- consensual acts of soliciting • s 145. Offence for male person to aid and nalises living off sex work decriminalised? abet prostitution - misdemeanour. or operating brothels. • s 146. Offence for female person to aid Although applicable to and abet prostitution - misdemeanour. both males and females, • s 148. Offence to operate a brothel - criminalising those who misdemeanour. aid and abet prostitution does not assist women who work in this field to carry out their work in a non-exploitative and pro- tected environment.

6.3 Is it a criminal offence to Partial Penal Code 1965, Although providing some procure any woman without • s 136(a). Procuration of girl under 18 - 2 protection from exploita- consent or any girl under 18? years imprisonment. tion, the offences are not • s 137. Procuration using drugs, threats fully compliant because or false representation - 2 years the penalties, except for imprisonment. girls under 13, are low. • s 138. Householder permits defilement of girl under 13 - life imprisonment. • s 139. Householder permits defilement of girl 13-15 - 2 years imprisonment. • s 140-142. Detain in a brothel against will and selling or hiring out of girls for prostitution by parents or any other person - 2 years imprisonment.

6.4 Does employment legis- No lation including occupational health and safety legislation protect sex workers?

6.5 Is the trafficking of women Partial Penal Code 1965, s 136(b)-(d). An offence to The legislation provides prohibited? procure any woman or girl to leave Tuvalu, some protection against with intent that she may become an inmate of the trafficking of women, or frequent a brothel elsewhere; or to leave however, compliance is her usual place of abode in Tuvalu (such place partial because: not being a brothel), with intent that she may • The penalties are low. for the purposes of prostitution become an • Corroboration is inmate of or frequent a brothel either in Tuvalu required, placing an or elsewhere - 2 years imprisonment and unreasonable burden requires corroboration either by another on victims. person or some material evidence implicating the accused. 6.6 Is sex tourism prohibited? No

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ARTICLE 7: POLITICAL AND PUBLIC LIFE

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 7.1 Is there an equal right to vote? Yes Constitution of Tuvalu, 1986, s 90, s 91. 7.2 Is there equal eligibility for Yes Constitution of Tuvalu, 1986, s 94. political representation? 7.3 Is there legislative provision No Despite equal eligibility to for minimum quotas of enter parliament, no women in Parliament? women have held or currently hold any of the 15 seats in the Tuvalu parliament. Quotas, which have raised numbers of women in parliament in other countries, may assist in achieving substantive equality in this area. 7.4 Do women have an equal Yes No legal barrier to equal right to participate in NGOs? participation. 7.5 Is there legislation (other than No Co-Operative Societies Charitable Societies legis- Ordinance 1952 enables lation) enabling women to societies to register, register and mobilise to however, the aims of such promote the advancement of societies must be women without political economic. interference?

ARTICLE 8: INTERNATIONAL REPRESENTATION AND PARTICIPATION

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

8.1 Do women have an equal Partial Whilst there is no legal opportunity to represent barrier preventing government at international women from representing level and participate in the government at the work of international international level, few do organisations? and the introduction of a quota system would ensure full compliance with this indicator.

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ARTICLE 9: NATIONALITY AND CITIZENSHIP

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 9.1 Do women have an equal Yes Constitution of Tuvalu 1986, s 44. right to acquire, change or retain their nationality? 9.2 Does marriage to a non- Partial Constitution of Tuvalu 1992, s 46. Wife’s To be compliant with this national or change of nationality is not changed by marriage but if a indicator, the marriage of husband’s nationality affect woman forgoes her nationality because of a woman to a non-national wife’s nationality? If there is marriage (not possible to have dual citizenship) should not affect her no change to a wife’s she must prove her marriage has irretrievably nationality. Although the nationality after marriage then broken down to regain it. Men cannot regain legislation is intended to there is full compliance with their citizenship on this basis. ‘protect’ women who this indicator. have forgone their citizenship to relocate to their husband’s place of residence, it contains dis- criminatory assumptions including that a woman will move to her husband’s residence (and not men to their wives’) and make her return to her place of origin contingent on marriage breakdown rather than her free choice.

9.3 Do both spouses have equal Yes Constitution of Tuvalu 1992, s 46. Any person rights to residency, who marries a Tuvaluan citizen is entitled to citizenship and employment citizenship. when spouse is a non- national? 9.4 Do both spouses have an Partial Constitution of Tuvalu 1992, This provision discri- equal right in determining • s 45. Equal rights except if at the time of minates against Tuvalu nationality of children? birth women who might have • s 45(a). Father was a citizen of a country children in a range of with which Tuvalu was at war; and possible scenarios (even • s 45(b). The birth occurred in a place in rape) in a country with Tuvalu occupied by that country. which Tuvalu is at war • s 45(5). In the case of a person who was including Tuvalu itself born out of wedlock, a father shall be read during occupation. as a reference to his mother. 9.5 Do women have an equal Yes Passports Act [Cap 79]. right to obtain passport?

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ARTICLE 10: EDUCATION

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

10.1 Does the legislation guarantee Yes Education Act 1978, s 3. Educational and Full compliance with women and girls have equal training opportunities are to be provided to all CEDAW requires that the access to education? children. legislation explicitly guarantees equal access to education for girls and women. In compliance with the indicator the legislation guarantees educational and training opportunities are to be provided to all children.

10.2 Is there legislation creating No special for the advancement of women in education? 10.3 Is there compulsory primary Yes Education Act 1978, s 30. Compulsory education for girls and boys? education for boys and girls at primary level.

10.4 Is there compulsory Yes Education Act 1978, s 30. Compulsory secondary education for girls education for boys and girls at secondary level and boys? until age 15. 10.5 Is family life (reproductive No and sexual health) education compulsory in schools?

10.6 Is there a legislative No prohibition on expulsion from school because of pregnancy?

ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 11.1 Are there anti-discrimination No provisions in employment legislation on the grounds of sex, marital status, pregnancy, sexual orientation and HIV status with sanctions?

11.2 Are there special measures No provisions for the advancement of women in employment?

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ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 11.3 Do women enjoy equal Partial • Workmen’s Compensation Ordinance As many women work conditions of work including [Cap 83] 1949, s 2. Excludes outworker in these capacities the leave, superannuation and and a member of employer’s family definition of worker to Workers Compensation? dwelling in his house. encompass these types • Employment Ordinance [Cap 84] 1966, s of work is discri- 2. Worker defined by a limited list of minatory and leaves categories which expressly excludes many women without casual workers and domestic servant. the minimal protections Domestic servant includes the domestic of other workers.The services of any private dwelling house. discriminatory • Employment Ordinance [Cap 84] 1966, s definition of family 2. Family is defined as ‘wife of a worker excludes the possibility and children under 14.’ This definition is of a woman and her relevant in the Employment (Housing husband and family Standards) Regulations s 5 made pursuant requiring housing. to the Ordinance in circumstances where Although intended to an employer supplies housing. The protect women and their regulations designate minimum standards dependants this means for the housing of a worker and family. women’s savings can • National Provident Fund Act, 1986. be used to meet the Women can withdraw their savings at any family needs but not time of unemployment but men can only men’s. withdraw their savings at 45.

11.4 Does the legislation provide Partial No specific protection from sexual harassment sexual harassment protection in the Employment Ordinance [Cap 84] 1966. from employers and co- However, in limited circumstances common workers? nuisance could be used. Common nuisance makes an offence ‘whoever, intending to insult the modesty of any woman or girl, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or girl, or whoever intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty’. 11.5 Does the definition of sexual No Common nuisance harassment include breadth of does not encompass a unwanted behaviours? comprehensive meaning of sexual harassment. 11.6 Does the legislation contain an No No legislative guar- equal pay provision? antee of equal pay. 11.7 Does the legislation contain No pay equity provisions? 11.8 Does the legislation provide No No legal guarantee of for an equal retirement age? equal retirement age.

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ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 11.9 Are there restrictions on No Employment Ordinance [Cap 84] 1966, s77, To be compliant with this women’s choice of 78, 79. indicator, there should be employment? If there are no • s 77. Women are prohibited from working no restrictions on a restrictions on women’s 6pm to 6 am. Exceptions: raw materials woman’s choice of choice of employment then or materials in course of treatment which employment. The there is full compliance with are subject to rapid deterioration Employment Ordinance this indicator. emergency, responsible position, nursing prevents women from caring for sick or health and welfare work, undertaking certain types in a cinema, hotel bar restaurant and club, of work. This is pharmacist. The Minister can provide discriminatory and in further exceptions. non-compliance with the • s 78. Women shall not be employed in indicator and with underground work in any mine except in CEDAW. management and health and welfare services. • s 79. The Minister may by order from time to time suspend the prohibition of the employment of women during the night when in case of serious emergency the public interest so demands. 11.10 Does the legislation provide Partial Employment Ordinance [Cap 84] 1966, s 107. Although there is a health protection during A general duty to provide for the medical care general duty to provide pregnancy? of workers. medical care, there is no particular responsibility on employers to provide health protection for pregnant workers. 11.11 Does the legislation provide Partial • Employment Ordinance 1966 [Cap 84], Although there is paid maternity leave of not less s 80. Upon production of a medical provision for paid than 14 weeks? certificate up to twelve weeks maternity maternity leave of 12 leave on not less than 25% of the wages weeks, the rate of 25% of including a period of at least six weeks’ pay is insufficient to meet compulsory leave after her confinement. women’s financial needs • General Administrative Orders 1985. during this time. The Public Service Act 1979. Must cease duty compulsory period of prior to the ninth month of pregnancy leave while intending to and is given leave not less than 50 days protect women restricts and not more than 60 days. This is on full their choice to determine pay. Upon production of a medical their own leave. certificate leave can be extended. Leave is granted without pay. 11.12 Does the legislation provide Partial • Employment Ordinance 1966 [Cap 84], No opportunity is given protection from dismissal s 81. Cannot be dismissed during time of to women to spend a because of pregnancy or approved leave (12 weeks). longer period of time maternity leave? • General Administrative Orders 1985 caring for young issued pursuant to Public Service Act 1979. children without the loss Cannot be dismissed during time of of their job. Provision for approved leave. extended unpaid leave should be provided to

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ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

enable women to have the choice to spend longer with their children if they wish.

11.13 Does the legislation guarantee No the provision of childcare by employer or state? 11.14 Does the legislation provide Partial Employment Ordinance [Cap 84] 1966, s 80(3). Insufficient breaks for reasonable nursing time during Half an hour twice a day during work hours. women to realistically work hours? return to work if they are breastfeeding.

ARTICLE 12: HEALTH CARE AND FAMILY PLANNING

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

12.1 Do women have access to No Penal Code [Cap 8] 1978, s 214. Abortion is a These provisions are safe and legal abortion criminal offence with a sentence of life discriminatory to women facilities? imprisonment. An exception if for life ‘in good because: faith for the purpose of preserving the life of • The criminalisation the mother’. of abortion denies women access to safe medical facilities and encourages the use of unsafe methods and facilities. • The criminalisation of abortion restricts women’s autonomy and right to choose if and when they have children. • The serious penalty for women who procure their own abortion (life imprisonment) fails to account for the reasons why women may choose to abort. • Note there is an exception to preserve the life of the mother.

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ARTICLE 13: ECONOMIC AND SOCIAL BENEFITS

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY There is no social 13.1 Do women have an equal Yes security system in right to family benefits Tuvalu. regardless of marital status? 13.2 Do women have an equal Yes No legal barrier to right to receive bank loans, receiving bank loans, mortgages and financial mortgages and financial credit? credit. 13.3 Do women have an equal Yes No legal barrier to right to participate in participation in recrea- recreational activities, sports tional activities, sports and cultural life? and cultural life.

ARTICLE 14: RURAL WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

14.1 Is there legislation that No Many women in Tuvalu provides for special measures live in rural communities to advance substantive and it is crucial that equality for rural women? Tuvalu incorporates special measures into either the national constitution or legislation to advance substantive equality.

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ARTICLE 15: EQUALITY BEFORE THE LAW AND CIVIL MATTERS

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 15.1 Does the Constitution No Constitution of Tuvalu 1986, s 10. All Freedom under the law guarantee equality before the citizens are entitled to freedom under the does not equate to law? law but the Constitution does not deny the equality before the law. existence, nature or effect of ‘cultural, social, Further, this freedom is civic, family or religious obligations. subject to obligations that may discriminate against women such as cultural or family obligations. 15.2 Do women have an equal Yes No legal barrier to capacity in civil matters - can women’s right to sue. women sue? 15.3 Do women have an equal Yes There is no legal barrier right to participate in courts to women’s right to and tribunals at all stages? participate in court proceedings. 15.4 Do women (regardless of Yes There is no legal barrier marital status) have an equal to women’s right to right to conclude contracts conclude contracts and and administer property? administer property. 15.5 Do women have an equal No Tuvalu Lands Code 1962, s 9(i). If an owner These provisions right to be executors or has more than 1 spouse then the eldest son favour sons and are administrators of estates? of the first spouse will be the administrator, discriminatory. or if there is no son by the first spouse but only daughters then the eldest daughter will be the administrator. A female administrator may if she wishes allow a son by a subsequent spouse to be the administrator: eldest son first and if only daughters then daughter. 15.6 Is there legislation that No There are no specific nullifies all contracts and legislative provisions instruments that limit with the effect of women’s legal capacity? nullifying contracts and instruments that limit women’s legal capacity.

15.7 Do women have an equal Partial Equal in most circumstances, however, Women are denied right to choose their Constitution of Tuvalu 1992, s 46. Wife’s domicile in their country residence and domicile? nationality is not changed by marriage but if of origin by this a woman forgoes her nationality because of provision. Only if their marriage (not possible to have dual marriage breaks down citizenship) she must prove her marriage has can they return to their irretrievably broken down to regain it. Men place of origin. Women cannot regain their citizenship on this basis. should be able to regain citizenship (and domicile) automatically if they renounce any other citizenship.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 16.1 Does the legislation Partial Matrimonial Proceedings Act [Cap 21] The legislation enables guarantee women’s entry 1985, s 8(b). If the marriage has been a woman to divorce if the into marriage with full and induced by duress the injured party to the marriage has proceeded free consent? marriage is, subject to Part IV, entitled to a without full and free divorce. consent but full comp- liance would require the marriage be voided in such circumstances.

16.2 Does the legislation allow Partial As above.16.1 marriages to be nullified if they took place under force, duress or undue influence? 16.3 Is there an equal minimum Partial Marriage Ordinance [Cap 29] 1968, s 5. 16 The age for marriage is age of 18 for marriage? and over for male and female. equal but less than the CEDAW recommended age of 18. 16.4 Is there a legislative Partial Marriage Ordinance [Cap 29] 1968, s 5. Full compliance with prohibition on child Marriage solemnised between persons CEDAW would not marriage? under 16 is void. recognise marriage under 18. 16.5 Does the legislation require Yes Marriage Ordinance [Cap 29] 1968, s 17. registration of marriage in an official registry? 16.6 Does the legislation prohibit Partial Penal Code [Cap 8] 1978, Bigamy is discrimina- bigamy? • s 163. Bigamy an offence however tory to women and • s 163(2) customary marriage an therefore custom that exception. protects its practice is also discriminatory.

16.7 Do women have an equal Yes No legal barrier to equal right to choose family name? right to choosing family name. 16.8 Is the consent of both parents No Marriage Ordinance [Cap 29] 1968, s 7. This provision does not equal in marriage of minors? Anyone under 21 who wishes to be married treat mothers and fathers must have written consent of father, or if equally and is reflective dead, absent or of unsound mind, the of the notion that the mother. father is the head of the family.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 16.9 Are both spouses equal in No The legislation does ownership, acquisition, not guarantee equality management, administration to both spouses in and enjoyment and ownership, acquisition, disposition of property? management, adminis- tration, enjoyment and disposition of property. Property rights are largely determined by custom which has constitutional status and where women are often discriminated against in terms of ownership and access to land use.

16.10 Does the legislation provide Partial Maintenance (Miscellaneous Provisions) Although there is for a maintenance and Ordinance [Cap 4] 1973. provision for main- custody order during • s 3. Can award maintenance if there is a tenance during separa- separation based on need? ‘legal or customary obligation’ to do so. tion, it is not based on • s 4. The court shall have ‘regard to all the criteria such as circumstances and in particular the respective earning resources of the defendant’ and order capacity and means, ‘such sums of money that the court thinks needs of both parties reasonable’ provision of ‘shelter and care’. and other commit- ments. The absence of such criteria to guide judicial discretion leaves women without a guarantee of main- tenance based on need.

16.11 Is there legislation to enable No women to occupy the marital home when settlement is not possible or in situations of domestic violence?

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

16.12 Does the legislation provide Yes To be compliant with an order for the restitution of this indicator, the conjugal rights? If the legislation should not legislation does not provide empower the courts to such an order then there is provide an order for full compliance with this restitution of conjugal indicator. rights. The legislation does not provide for orders for restitution of conjugal rights (which are discriminatory as they take away a woman’s autonomy to choose when and with whom she has sexual relations) and therefore is in full compliance with this indicator and with CEDAW. 16.13 Does the legislation provide Partial Matrimonial Proceedings Act [Cap 21] 1985. Although the criteria for no fault divorce? • s 8, s 9. The only ground for divorce is are fault based they that the marriage has completely broken have evidentiary down. A range of criteria can be used to weight only and are not establish complete breakdown which are necessary to success- fault based. fully obtain a divorce. • s 12. The court may refuse divorce if adequate arrangements not made or will be made for the welfare of child. 16.14 Is there a duty on the court No Matrimonial Proceedings Act [Cap 21] 1985, To be compliant with to promote reconciliation? If s 10. The court must certify no attempt to this indicator, the the legislation does not reconcile is likely to succeed otherwise 3 legislation should not contain such a duty then there month adjournment to allow parties to settle place a duty on the is full compliance with this their differences. court to promote indicator. reconciliation between estranged spouses. Such a duty is discriminatory and non- compliant because it removes women’s choices or reduces their autonomy to choose to leave a relationship. The legislation places a duty on the court to promote reconciliation and therefore is in non- compliance, with the indicator and with CEDAW.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 16.15 Does the legislation provide Partial Matrimonial Proceedings Act [Cap 21] 1985, Although property for an equal division of s 10, s 13 ‘Necessary and desirable’ and ‘shall division is included in the property after divorce not be unreasonable or inconsistent with any legislation there is no including recognition of other law including Tuvaluan custom. criteria that recognises the unpaid contribution, future contribution of both needs, and future earning parties including financial capacity? and non-financial. It is also subject to customary law, regardless of whether it discriminates against women. 16.16 Does the legislation provide Partial Matrimonial Proceedings Act [Cap 21] 1985, As above 16.10 for the payment of child s 10, s 13 ‘Necessary and desirable’ and ‘shall support after divorce based not be unreasonable or inconsistent with any on need? other law including Tuvaluan custom. 16.17 Does the legislation provide Partial Matrimonial Proceedings Act [Cap 21] 1985, As above 16.10 for maintenance for the ex- s 10.s 13 ‘Necessary and desirable’ and ‘shall spouse based on not be unreasonable or inconsistent with any commitments, income, other law including Tuvaluan custom.’ earning capacity, and assets? 16.18 Is custody and access to Partial Custody of Children Ordinance [Cap 20] These provisions make children based on the best 1974. the welfare of the child interests of the child • s 3. Custody to be awarded ‘having paramount, which is in full regardless of relationship of regard to the welfare of the child and conformity with this parent? the conduct and wishes of the mother indicator. However, the and father’ subject to Native Lands reference to conduct Ordinance [Cap 22] 1957. implies fault is a factor and • s 3(3). Welfare of the child is the first it is subject to the and paramount consideration. Native Lands Ordinance [Cap 22] 1957 which contains discriminatory provisions.

Native Lands Ordinance [Cap 22] 1957 This is discriminatory as • 20(1). If in any island a single woman it does not award custody is delivered of a child the court may on the basis of the best summon the woman and ‘all other such interests of the child but natives as it may think fit’ and enquire protects a paternal right to into the paternity of the child. custody. • s 20(2) (i). If the father being a native accepts the child as being his after reaching the age of 2 it shall reside with the father or his relations and shall in accordance with native customary law inherit land and property from his father in the same way as the father’s legitimate children.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

16.19 Does the legislation provide Yes To be complaint with this damages for adultery? If there indicator, the legislation is no provision for damages should not provide then there is full compliance damages for adultery. with this indicator. Damages for adultery are discriminatory as they seek to punish the sexual behaviour of consenting adults and interferes with their autonomy. The legislation does not provide a right to damages for adultery and therefore is in full compliance with the indicator and with CEDAW. 16.20 Do women have an equal Partial Adoption of Children Act 1985, s 2. Equal These provisions defer right to guardianship, right to adopt and be guardian but applies only to custom without any wardship, trusteeship and to children who are not natives and adoptive safeguards as to whether adoption? parents who may not be natives and in the custom is circumstances when customary procedure of discriminatory to native adoptions are ‘inappropriate’.Native women. Lands Ordinance [Cap 22] 1957, s 16. The court shall adjudicate on all cases brought before it concerning native adoptions and the conveyances of land which such adoptions may entail.

16.21 Does the legislation No recognise de facto rights (including same sex couples) on the same basis as marriage? 16.22 Does the legislation provide Partial Native Lands Ordinance 1957, s20.(1). If in Although there is a an order to establish any island a single woman is delivered of a process for establishing parentage? child, the court may summon before it that paternity it is insufficient woman and all other such natives as it may to ensure a thorough think fit and may enquire into the paternity of investigation. the child.

16.23 Does the legislation provide No for a contribution to pregnancy and child birth costs by father to unmarried mother?

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 16.24 Does the legislation provide Partial Maintenance (Miscellaneous Provisions) The criteria afforded to for the payment of child Ordinance [Cap 4] 1973. the court under the support for children born • s 3. Can award maintenance if there is a Native Ordinance to outside of marriage? ‘legal or customary obligation’ to do so. determine child • s 4. The court shall have ‘regard to all support is based on the circumstances and in particular the what is ‘necessary’ and, resources of the defendant’ and order if there is no land, then ‘such sums of money that the court thinks monetary assistance of reasonable’ for the provision of ‘shelter no more than $2 or and care’. foodstuffs may be Native Lands Ordinance 1957. awarded. The level of Applies only to natives· support should be • s 20(2 (ii). If no acknowledgement of based on the needs of paternity of the child, but the court is the child and the satisfied that he is the father of the child, respective financial it may order that the child shall live with resources and ca- the mother and may transfer to the child pacities of the two title to any such portion of land or other parents. property owned by the father as necessary for the maintenance and support of the child; or • s 20(2 (iii). If there is no land which will be of assistance in maintaining the child, monetary maintenance not exceeding $2 per month or maintenance by supply of foodstuffs until such time as the child reaches the age of 21. 16.25 Does the legislation provide No Native Lands Ordinance 1956, s 15. The These provisions for equal inheritance laws? court shall be a court of probate in advantage the children respect of native wills and shall of first spouses over adjudicate in accordance with native second spouses and customary law on all cases arising from give more to the eldest the administration and partition of native son than to daughters. estates. The provisions are discriminatory as they Tuvalu Lands Code 1962. Made pursuant to do not provide equally the Native Lands Ordinance 1956, s 28. for males and females. • s 9(i). The issue of the first spouse will These laws discrimi- receive more lands than the issue of the nate against women as second or subsequent spouses. they favour paternal However if some of the children of the lines and sons over owner will suffer hardship by such a daughters in some distribution then the lands court may circumstances. distribute the lands amongst the children irrespective of which spouse they are from.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

• s 9(ii). In the distribution of an estate between the sons and daughters of an owner, the share of the eldest son shall exceed that of his brothers and the shares of share of sons shall exceed the shares of daughters. If there are no sons then the share of the eldest daughter will exceed that of her sisters. • s 9(4)(c). If he dies issueless and he has no brothers and sisters and is intestate then the lands will be distributed to his paternal next-of-kin. • s 14. A husband whose wife has lived continuously with him for not less than 3 years immediately preceding his decease, and by whom he has no children, must make adequate provision for the said wife during her lifetime. On the death or the remarriage of the said wife the lands and pits given for her support must revert to the husband’s family.

16.26 Is there legislation requiring No the court to apply CEDAW and CRC to domestic family law when relevant?

388