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United Arab Emirates (UAE) Musawah Thematic Report on Article 16 & Muslim Family Law: United Arab Emirates (UAE) 62nd CEDAW Session Geneva, Switzerland November 2015 Musawah c/o Sisters in Islam [SIS Forum (Malaysia)] No. 4, Lorong 11/8E, 46200 Petaling Jaya Selangor, Malaysia Tel: +603 7960 5121 Fax: +603 7960 8737 Email: [email protected] Website: http://www.musawah.org Musawah Thematic Report on Article 16 & Muslim Family Law: United Arab Emirates (UAE) 62nd CEDAW Session November 2015 TABLE OF CONTENTS I. INTRODUCTION II. LEGAL BACKGROUND III. RHETORICAL MAP: HOW THE STATE ENGAGES WITH ISLAM IV. KEY ISSUES: LIVED REALITIES, ISLAMIC JURISPRUDENCE, & REFORM A. Articles 5 & 16(c): Equal Rights & Responsibilities in Marriage (Gender Stereotypes) B. Articles 15(4) & 16.1(a-b): Capacity to Enter into Marriage (Male Guardianship) C. Article 16.2: Early & Child Marriage D. Article 16.1(a): Polygamy & Temporary Marriage E. Article 16.1(c): Access to Divorce F. Article 16.1(f): Custody & Guardianship of Children G. Article 9(2): Right to Confer Nationality V. CONCLUSION VI. MUSAWAH VISION VII. ANNEX 1: RESEARCH METHODOLOGY VIII. ANNEX 2: SUPPLEMENTARY CASE STUDIES IX. ANNEX 3: GLOSSARY OF KEY TERMS X. REFERENCES Musawah Thematic Report on Muslim Family Law: United Arab Emirate (UAE) ii Musawah Thematic Report on Article 16 & Muslim Family Law: United Arab Emirates (UAE) 62nd CEDAW Session I. INTRODUCTION Musawah, the global movement for equality and justice in the Muslim family, submits its 13th Thematic Report on Article 16 and related concerns for consideration by the CEDAW Committee in its review of the Government of United Arab Emirates (UAE), reporting before the 62nd Session of the CEDAW Committee.1 This is the CEDAW Committee’s second engagement with the Government of the UAE, which acceded to the CEDAW Convention on 6 October 2004, and entered reservations to Articles 2(f), 9, 15(2), 16, and 29(1).’2 Musawah’s issues of concern and supplementary research take a critical look at the status of marriage and family relations, as largely encapsulated in Article 16 of the CEDAW Convention. Since the concerns of equality and justice in the family are crosscutting, issues in Article 2 (implementation of non-discrimination; penal provisions that constitute discrimination against women), Article 5 (gender stereotypes; harmful practices), Article 9 (equal rights with regards to nationality), and Article 15 (equality before the law; freedom of movement and residence) are also covered. In particular, this report examines Emerati laws and practices that enforce de jure (direct) and de facto (indirect) discrimination against women in the following areas, discussed in order to relevant CEDAW Articles: equal rights & responsibilities in marriage (gender stereotypes); violence against women; right to confer nationality to children; male guardianship; early and forced marriage; polygamy; access to divorce; custody & guardianship of children; inheritance. It is hoped that the research, analysis, and recommendations in this report will provide critical information in (1) highlighting key concerns and identifying gaps in the State party report and the State party’s reply to the list of issues; (2) providing alternative arguments within Islamic legal theory that challenge the ways the State party uses religion to justify discrimination, including reservations and non-implementation of its international human rights treaty obligations; and (3) suggesting recommendations for reform based on good practices in Muslim contexts.3 Musawah hopes that the CEDAW Committee will utilise the content of this report as a key resource during its Constructive engagement with the State party, and in follow-up activities on the Concluding observations. 1 Musawah: http://www.musawah.org/. 2 United Nations Treaty Collection: CEDAW Declarations and Reservations, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en. 3 Musawah uses the term ‘good’ or ‘promising’ rather than ‘best’ practices to take into account the complex contextual framework of practices located in the wide spectrum of ‘bad’ to ‘good.’ Musawah also seeks to look at good practices that have been transformative in relation to eliminating discrimination against women in law and in practice in different contexts, and in the light of the different realities that women face. This use of terminology and definition builds on existing work on this issue by special procedure mandate holders, including the UN Working Group on the issue of discrimination against women in law and in practice. See: Human Right Council 20th Session, Annual Report of the Working Group on the issue of discrimination against women in law and in practice (April 2012), U.N. Doc. A/HRC/20/28, p. 5, available at: http://www.ohchr.org/Documents/Issues/Women/A-HRC-20-28_en.pdf. Musawah Thematic Report on Muslim Family Law: United Arab Emirate (UAE) 1 II. LEGAL BACKGROUND 1. UAE Constitution (1971) v The Constitution defines the goals and basic structure of the federation. Islam is the official religion of the federation.4 v The State notes that ‘the Constitution guarantees equal rights for men and women.’5 Although the UAE’s Constitution provides the principle of equal treatment of all citizens, it addresses neither equality between women, nor a definition of discrimination on the basis of sex specifically;6 7 it further contains references that identify women primarily as wives and mothers, therefore reinforcing traditional gender roles.8 v The Constitution articulates the family as ‘the basis of society’: ‘Its foundations are religion, morality and patriotism. The law shall guarantee its existence, safeguard it and protect it from corruption.’9 2. UAE Federal Personal Status Act, no. 28 (2005) v The Act regulates a number of matters related to the family including marriage, divorce and child custody. v The Act is based the Maliki school of law in Sunni Islam,10 11 and influenced by Egyptian code and French civil law.12 13 v Muslims have no option to seek adjudication pursuant to a civil code, and rules on marriage apply only to marriages between Muslims, or between a Muslim man and a Jewish or Christian woman.14 15 4 CEDAW 62nd Session, UAE State party report (3 December 2014), U.N. Doc. CEDAW/C/ARE/2-3, [hereinafter UAE State party Rport 2014], para. 7, available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fARE%2f2- 3&Lang=en . 5 Ibid, para. 65. 6 CEDAW 45th Session, UAE Concluding observations (5 February 2010), U.N. Doc. CEDAW/C/ARE/CO/1, [hereinafter UAE Concluding observations 2010] para. 15, available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fARE%2fCO%2f1&La ng=en. 7 The Government uses Articles 14 and 25 of the Constitution to claim equality between men and women are enshrined in law. Article 14: ‘Equality, social justice, the provisions of safety and security, and equality of opportunity for all citizens shall be pillars of society, and mutual assistance and compassion shall be a strong bond between them. Article 24: ‘All persons are equal before the law, without distinction between citizens of the Federation on grounds of race, nationality, religious belief or social status.’ CEDAW 62nd Session, UAE Responses to the list of issues and questions (29 July 2015), U. N. Doc. CEDAW/C/ARE/Q/2-3/Add.1 [hereinafter UAE Responses to the list of issues and questions 2015], pp. 2., available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fARE%2fQ%2f2- 3%2fAdd.1&Lang=en. 8 Social Institutions & Gender Index (SIGI): United Arab Emirates (2014), Organisation for Economic Co-operation and Development (OECD) Development Centre, available at: http://genderindex.org/country/united-arab-emirates. 9 UAE Responses to the list of issues and questions 2015, supra note 7, response to para. 1. 10 Al Nowais, S., “Divorcees, widows concerned about receiving ‘permission’ before remarrying”, The National UAE, August 7, 2014, available at: http://www.thenational.ae/uae/courts/divorcees-widows-concerned-about-receiving- permission-before-remarrying. 11 The National UAE, “UAE remarriage law deserves to be reviewed”, August 7, 2014, available at: http://www.thenational.ae/opinion/editorial/uae-remarriage-law-deserves-to-be-reviewed 12 UNICEF - Regional Office for the Middle East and North Africa, United Arab Emirates, Mena Gender Equality Profile, Status of Girls and Women in the Middle East and North Africa, October 2011, p. 1, available at: http://www.unicef.org/gender/files/UAE-Gender-Eqaulity-Profile-2011.pdf. Musawah Thematic Report on Muslim Family Law: United Arab Emirate (UAE) 2 v Article 1 establishes that the law applies to all citizens of the UAE, unless non-Muslims have special provisions applicable to their sect or confession. The law also applies to non-citizens unless they request the application of their own law.16 v Many heralded the codification of personal status law in 2005 as an advancement in Emirati women’s rights, as codification ensured that decisions relating to personal status were no longer determined by the interpretation of Shari’ah law by individual judges.17 18 3. The UAE Office of the Family Law Prosecutor v The office maintains jurisdiction to investigate and address juvenile offences and criminal offences occurring within a single family; it further is authorised to provide opinions in cases concerning families and the welfare of minors before the
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