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assume unequal rights concerning family property and inheritance; they may give
the husband a privileged legal position in issues of child custody; and some of these
laws allow men to contract polygamous marriages.
64. While from the perspective of equality between men and women the critical
focus will naturally fall on discriminatory gender roles existing in many
denominational family laws, one also has to address the problem of State
enforcement of religious norms. The enforcement of religious norms by State
agencies necessarily gives rise to critical questions from the perspective of freedom
of religion or belief, which is a right of human beings, not of States. In most (not
all) such systems, State enforcement of denominational family laws accommodates a
certain degree of religious pluralism. Accordingly, members of different religious
communities, including recognized minorities, can regulate their family-related
legal affairs in conformity with the normative precepts of their own religious
traditions. In spite of pluralistic conceptualizations, however, the element of State
enforcement of denominational family laws remains problematic from the
perspective of freedom of religion or belief. Although each of the existing systems
would require an assessment based on their specific merits, systems of State
enforced denominational family laws typically fail to do justice to the human rights
of persons living outside of the recognized religious communities, for example
atheists or agnostics, members of small religions or new religious movements.
However, as the Human Rights Committee has pointed out, article 18 of the
International Covenant “protects theistic, non-theistic and atheistic beliefs, as well
as the right not to profess any religion or belief. The terms belief and religion are to
be broadly construed. Article 18 is not limited in its application to traditional
religions or to religions and beliefs with institutional characteristics or practices
analogous to those of traditional religions.” 14
65. Moreover, individuals may change their religious orientations. The freedom to
do so constitutes an integral part of the forum internum dimension of freedom of
religion or belief. However, this right can hardly be appropriately accommodated
within a system of State-enforced denominational family laws. Many of the
resulting problems concern women. For instance, it happens that women stemming
from religious minorities who have converted in the context of a marriage wish to
reconvert to their previous religion when the marriage breaks down. When trying to
do so, they may encounter enormous difficulties in securing the right to have
custody of their children. Losing custody of a child can be one of the worst
experiences for a parent. This is only one example of serious human rights problems
in this field in which violations of freedom of religion or belief and discrimination
against women coincide.
66. It should be noted in this context that there have also been cases of custody
denials based on prejudices against certain religious minorities within secular family
law systems. This shows the need for sensitizing judges and other professionals
dealing with such matters in all systems of family law. At the same time, there is a
clear need for structural reforms in order to close relevant protection gaps. What is
required in order to overcome the risk of human rights violations in this important
field is family law systems that unequivocally respect the equality of men and
women while at the same time doing justice to the broad reality of diversity of
religion or belief, including persuasions beyond the realm of traditionally
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14
18/22
See CCPR/C/21/Rev.1/Add.4, para. 2.
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