Economic Consequences of Marriage and Its Dissolution: Applying a Universal Equality Norm in a Fragmented Universe

Abstract

Inequality in the family is the most damaging of all forces in women’s lives. It is overtly preserved by religious, customary, and state laws that formally enshrine discrimination against women and is perpetuated by de facto lack of access to nominally protective systems and remedies. International law and its implementation mechanisms provide an arena for confronting resistance to gender equality in the family, calling states to account at the highest level as well as providing a platform for domestic advocacy. CEDAW and the jurisprudence of its monitoring body, the Committee on the Elimination of Discrimination against Women, clearly state the paramount value of protecting the individual human rights of family members rather than maintaining family “protection” and privacy at the expense of the women within it. By ratifying, States theoretically commit themselves to this progressive position. However, the politics of state and community identity make for a more complex picture that includes multiple, sometimes overlapping, levels of acceptance and rejection. Taking as a case study the current initiative to adopt a new General Recommendation to address the economic consequences of family relations and their dissolution, this Article draws on the CEDAW Convention and the CEDAW Committee’s work to suggest a practical application of international standards to address the tangle of legal systems and identity that have disadvantaged women for centuries. Placing this initiative within the context of multiple family law regimes and the multicultural debate, the right to exit and the concept of freedom to associate and to disassociate are emphasized as crucial in confronting the phenomenon of discriminatory identity-based family legal regimes. The Article concludes with an illustration of the harmonization process required by the CEDAW Convention, taking the new General Recommendation as a model approach for meeting the international equality norms while preserving community or State identity.