Convention on the elimination of all forms of discrimination against women: position statement

Article 16: Equality in marriage and family law

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

16.1 Forced Marriage

The Forced Marriage etc. (Protection and Jurisdiction) Scotland Act 2011 introduced a civil Forced Marriage Protection Order, breach of which is a criminal offence. From 30 September 2014, section 122 of the Anti-Social Behaviour, Crime and Policing Act 2014 made it a criminal offence to force a person into marriage. The Scottish Government funds a number of specialist organisations (almost £500,000 for 2017-18) that provide support and assistance to those affected or who may be affected by forced marriage. The Scottish Government commissioned independent research into forced marriage in Scotland and a final research report was published at the end of January 2017. Findings from this research are being used to inform future thinking on tackling the issue.

The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (Relevant Third Party) Order 2017 came into effect on 19 March 2018.

This has made Police Scotland a relevant third party and allow them to directly make applications for Forced Marriage Protection Orders, thus streamlining the process.

16.2 Equal protection for women's and men's property rights

The law on property rights is gender-neutral, there is therefore equal protection for women's and men's property rights under the law that applies to a particular relationship (family law on divorce or the dissolution of a civil partnership, and civil law on property, contracts and trusts where couples had cohabited but were not in a legal union). The UK Government is considering whether further reform to the family justice system in England and Wales is needed to make sure it is delivering the best outcomes for children and families, and protecting the most vulnerable users of the system. The Scottish Government is considering whether similar changes are required in Scotland.

16.3 Corporal Punishment

The existing legislation in Scotland makes it illegal to punish children by shaking, hitting on the head or using an implement. The Scottish Government remains opposed to physical punishment of children. John Finnie MSP has indicated that he intends to bring forward a member's Bill in the Scottish Parliament to remove the defence for parents and ban all forms of physical punishment of children. The Scottish Government's 2017/18 PfG confirms plans to support Mr Finnie's proposal.