Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce

Abstract

In order to demonstrate the significance of Article 16 (1)(c) Women’s Convention on gender equality and divorce for Muslim women, this article first highlights the importance of the ‘persuasive power’ of the Convention strengthened by - although it is a soft law mechanism - its reporting procedure to CEDAW. As a result, the eagerness of states to create the image of being supportive of equality for women in the international community, as illustrated by Morocco and Pakistan, leads to corrosion of the legitimacy of their discriminating domestic divorce laws as it becomes more and more difficult for these states to justify their application. This process, as such, already indicates a transitional stage towards reform and thus compliance with the Convention. Moreover, these external pressure exerting powers are indispensable for and complementary to the domestic pressure for reforms by NGO’s. Furthermore, an approach from a culturally nuanced perspective in order to further the implementation of Article 16 (1)(c) in Islamic states is advocated in this chapter. It appears that the option of striving for substantive equality or equality of results is more feasible than to strive for the Convention’s requirement of full equality. The latter is at odds with the fundamental Islamic legal principle that either spouse has his/her own modalities of divorce. Morocco is exemplary in this respect as its government - under pressure of NGO’s and CEDAW - has accomplished a balanced system of divorce modalities by introducing an independent accessible, judicial divorce modality for either or both spouses and submitting the repudiation-based divorces to judicial monitoring.