On February 22, 1995, the Inter-American Commission on Human Rights
(hereinafter "Commission") received a petition dated February 8,
1995, alleging that Articles 109, 110, 113, 114, 115, 131, 133, 255, and
317 of the Civil Code of the Republic of Guatemala (hereinafter
"Civil Code"), which define the role of each spouse within the
institution of marriage, create distinctions between men and women which
are discriminatory and violate Articles 1(1), 2, 17 and 24 of the American
Convention on Human Rights (hereinafter "American Convention").
The petitioners, the Center for Justice and International Law and
María Eugenia Morales de Sierra, indicated that Article 109 of the Civil
Code confers the power to represent the marital union upon the husband,
while Article 115 sets forth the exceptional instances when this authority
may be exercised by the wife. Article
131 empowers the husband to administer marital property, while Article 133
provides for limited exceptions to that rule.
Article 110 addresses responsibilities within the marriage,
conferring upon the wife the special “right and obligation" to care
for minor children and the home. Article
113 provides that a married woman may only exercise a profession or
maintain employment where this does not prejudice her role as mother and
homemaker. They stated that, according to Article 114, a husband may
oppose his wife's activities outside the home, as long as he provides for
her and has justified reasons. In
the case of a controversy with respect to the foregoing, a judge shall
decide. Article 255 confers
primary responsibility on the husband to represent the children of the
union and to administer their property.
Article 317 provides that, by virtue of her sex, a woman may be
excused from exercising certain forms of guardianship.
The petitioners reported that the constitutionality of these legal
provisions had been challenged before the Guatemalan Court of
Constitutionality in Case 84-92. In
response, the Court had ruled that the distinctions were constitutional,
as, inter alia, they provided juridical certainty in the allocation of
roles within marriage. The
petitioners requested that the Commission find the foregoing provisions of
the Civil Code incompatible in
abstracto with the guarantees set forth in Articles 1(1), 2, 17 and 24
of the American Convention.
4. The Commission indicated to the petitioners the need to identify concrete victims, as this was a requirement under its case system. On April 23, 1997, the petitioners submitted their written presentation of María Eugenia Morales de Sierra as the concrete victim in the case.
PROCESSING BY THE COMMISSION
Pursuant to the filing of the petition, on March 14, 1995 the
petitioners sent the Commission a copy of the sentence issued by the Court
of Constitutionality in Case 84-92. The
Commission opened Case 11.625 on May 6, 1996, and the pertinent parts of
the petition were transmitted to the Republic of Guatemala (hereinafter
“State” or “Guatemalan State”) with a request for information in
response within 90 days.
The State requested an extension of time to respond by means of a
note of August 6, 1996. In a
note of August 7, 1996, the Commission indicated that an extension of 30
days had been granted.
The response of the State, dated September 10, 1996, was received
and the pertinent parts thereof were transmitted to the petitioners for
Pursuant to the petitioners’ request, the Commission granted a
hearing to address the admissibility of Case 11.625 during its 93rd
regular period of sessions. At
the conclusion of that hearing, held on October 10, 1996 at the
Commission’s headquarters, the parties agreed that the Commission should
review the matter during its next period of sessions to assess any
developments and evaluate the feasibility of resolving the case through
the procedure of friendly settlement initiated.
Additional information provided by the petitioners during that
hearing was formally transmitted to the State for its observations by
means of a note of October 15, 1996.
On December 13, 1996, the State transmitted a report to the
Commission on pending efforts in favor of reforming the Civil Code, as
well as the text of the "Law to Prevent, Sanction and Punish
Intrafamilial Violence," approved by the Congress by means of Decree
Number 97-96, and scheduled to enter into force on December 28, 1996.
This submission was transmitted to the petitioners by means of a
note dated January 9, 1997.
Pursuant to the January 24, 1997 request of the petitioners, the
Commission held a hearing on this case at its headquarters on March 5,
1997, during its 95th regular period of sessions. The
Commission questioned the petitioners as to whether they were requesting a
determination in abstracto or
pursuing an individual claim. The
petitioners indicated that, in the concrete case, María Eugenia Morales
Aceña de Sierra had been directly affected by the challenged legislation,
and also represented other women victims in Guatemala.
The Commission requested that they formalize the status of María
Eugenia Morales de Sierra as the victim in writing, in order to comply
with the dispositions of its Regulations and proceed to process the
petition within its case system.
The petitioners formalized the status of María Eugenia Morales de
Sierra as victim in a communication of April 23, 1997, the date as of
which the Commission considers this status to have been established in the
file. The pertinent
parts of this communication were transmitted to the State for its
observations by means of a note of June 9, 1997.
On July 10, 1997, the Government provided a brief submission of
additional information which was transmitted to the petitioners for their
observations by means of a note dated July 14, 1997.
On July 28, 1997, the petitioners provided the Commission with
documentation complementing their April 23, 1997 submission.
The documentation was transmitted to the Government of Guatemala
for its observations on August 14, 1997.
Pursuant to the request of the petitioners, the Commission held an
additional hearing on the admissibility of the present case on October 10,
1997, at its headquarters, during its 97th period of sessions.
Pursuant to Commission inquiry, the State indicated that it
remained disposed to consider the option of the friendly settlement
procedure. The petitioners
indicated their belief that this option had been thoroughly explored, but
had failed to provide any fruitful results.
On March 6, 1998, the Commission approved Report 28/98, declaring
the present case admissible. That
report was transmitted to both parties by means of notes of April 2, 1998.
Citing ongoing discussions concerning reforms to the relevant
articles of the Civil Code, on May 5, 1998, the State requested an
extension of time to provide information relevant to Report 28/98.
The Commission granted an extension until June 22, 1998, and
informed the petitioners that this had been done.
The State filed a brief submission, dated June 23, 1998, indicating
that it remained disposed to enter into friendly settlement negotiations,
and requesting that, if this were accepted by the petitioners, the
Commission suspend its processing of the matter.
This filing was transmitted to the petitioners for any observations
by means of a note of July 16, 1998.
19. The petitioners filed a summary of their arguments concerning the merits of the claims raised by means of a note dated August 10, 1998. The pertinent parts thereof were transmitted to the State for its observations on August 27, 1998.
THE POSITIONS OF THE PARTIES
The Position of the Petitioners
From the initiation of this matter, the petitioners have maintained
that the challenged articles of the Civil Code of Guatemala establish
distinctions between men and women which are discriminatory and therefore
violate the terms of the American Convention.
Pursuant to their designation of María Eugenia Morales de Sierra
as the named victim, the petitioners asserted that these articles place
her in a position of juridical subordination to her husband, and prevent
her from exercising control over important aspects of her life.
They indicate that the cited provisions discriminate against the
victim in a manner which is immediate, direct and continuing, in violation
of the rights established in Articles 1(1), 2, 17, and 24 of the American
Convention. Pursuant to their
arguments submitted after Commission’s adoption of Report 28/98
admitting the case, they further allege that this discrimination infringes
upon the private and family life of the victim in contravention of Article
11(2) of the Convention.
petitioners contend that Articles 109, 110, 113, 114, 115, 131, 133, 255
and 317 of the Civil Code create distinctions between married women,
single women and married men, with the result that María Eugenia Morales
is prohibited from exercising rights to which those other groups are
international human rights jurisprudence, including that of the
Inter-American Court, they assert that, while a difference in treatment is
not necessarily discriminatory, any such distinction must be objectively
justified in the pursuit of a legitimate end, and the means employed must
be proportionate to that end. The
distinctions at issue in this case, they maintain, are illegitimate and
petitioners allege that, as a married woman living in Guatemala, a mother,
a working professional, and the owner of property acquired jointly with
her husband during their marriage, Ms. Morales de Sierra is subject to the
immediate effects of this legal regime by virtue of her sex and civil
status, and the mere fact that the challenged provisions are in force.
By virtue of Article 109, representation of the marital unit
corresponds to the husband, and by virtue of Article 131, he administers
the marital property. Articles 115 and 133 provide respective exceptions to these
general rules only where the husband is essentially absent.
By virtue of Article 255, the husband represents and administers
the property of minors or incapacitated persons.
A wife, in contrast, may be excused from exercising custody over
such persons by virtue of her sex and the terms of Article 317.
These articles prevent Ms. Morales de Sierra from legally
representing her own interests and those of her family, and require that
she depend on her husband to do so.
her right to work is conditioned on what the petitioners characterize as
the anachronistic legislative division of duties within marriage, with
Article 110 providing that care of the home and children corresponds to
the wife and mother, and Articles 113 and 114 providing that a wife may
pursue activities outside the home only to the extent that these do not
prejudice her role within it. Although
the victim’s husband has never opposed her exercise of her profession,
by law he could do so at any moment, and in the case of a dispute, a judge
would decide. The petitioners
refer to the dicta of the Inter-American Court in Advisory Opinion OC-14
in submitting that a norm which deprives a group within a population of
certain rights, for example on the basis of a factor such as race or sex,
automatically injures all the members of the group thus affected.
petitioners dispute the finding of the Court of Constitutionality of
Guatemala that the challenged provisions are justified as a form of
protection for women, and as a means of establishing juridical certainty
in the allocation of rights and responsibilities within marriage.
They assert that the means employed are disproportionate and the
resulting discrimination in treatment is unreasonable.
These provisions, they argue, are contrary to the principle of
equality between the spouses, and nullify the juridical capacity of a
married woman within the domestic legal order, thereby controverting the
protections set forth in Articles 17 and 24 of the American Convention, as
well as the obligations set forth in Articles 1(1) and 2.
Further, they argue that the manner in which the provisions impede
the ability of the victim to exercise her rights, in limiting, for
example, her right to work or to dispose of her property, constitutes an
unjustified interference in her private life in contravention of Article
the petitioners note that the challenged provisions contravene Articles 15
and 16 of the Convention on the Elimination of All Forms of Discrimination
against Women, provisions to which the Commission may refer in formulating
its decision. They further note that the recognized relationship between
inequality in gender relations and the prevalence of violence against
women may also serve to guide the Commission’s findings.
The Position of the State
The State does not controvert the substance of the claims raised by
the petitioners. Rather, it
maintains that it is continuing to take steps to modify the challenged
articles of the Civil Code to bring them into conformity with the norms of
the American Convention and the Convention on the Elimination of All Forms
of Discrimination against Women. In
proceedings before the Commission prior to the adoption of Report 28/98,
the State acknowledged that the cited provisions are “out of date” and
give rise to concerns with respect to the obligation of nondiscrimination.
It further noted that efforts in favor of reform of the articles
had been based on the fact that they contravene Article 46 of the
Constitution, as well as provisions of the American Convention and the
Convention on the Elimination of All Forms of Discrimination Against
Women. The Government
emphasized that it had demonstrated its interest in derogating or
reforming certain articles of the Civil Code, both through supporting
initiatives in favor of legislative changes, and through a constitutional
challenge to Articles 113 and 114 presented by the Attorney General in
It was principally on the basis of pending initiatives in favor of
reform that the State had challenged the admissibility of the case,
contending that domestic mechanisms continued to offer available and
effective relief for the situation denounced, and that the petitioners had
accordingly failed to satisfy the requirement of exhausting internal
Following the adoption of the Commission’s report on
admissibility, the State indicated that the Congress was continuing to
pursue the objective of modifying certain articles of the Civil Code in
order to bring them into conformity with the Convention on the Elimination
of All Forms of Discrimination against Women.
As of the State’s June 22, 1998 submission, those reforms were
still under discussion in the Congress.
The State maintains that the measures undertaken in favor of reform
of the challenged articles demonstrate its commitment to upholding the
guarantees set forth in the Constitution, and in the American Convention
on Human Rights and other applicable international law.
CONSIDERATIONS REGARDING THE MERITS
At the outset, it is pertinent to note that, notwithstanding the
presentation of various draft reform projects before the Guatemalan
congressional commissions charged with pronouncing on such initiatives, as
of the date of the present report, the relevant articles of the Civil Code
continue in force as the law of the Republic of Guatemala. In brief,
Article 109 provides that representation of the marital union corresponds
to the husband, although both spouses have equal authority within the
Article 110 stipulates that the husband owes certain duties of
protection and assistance to the wife, while the latter has the special
right and duty to care for minor children and the home.
Article 113 sets forth that the wife may exercise a profession or
pursue other responsibilities outside the home only insofar as this does
not prejudice her responsibilities within it.
Article 114 establishes that the husband may oppose the pursuit of
his wife’s activities outside the home where he provides adequately for
maintenance of the home and has “sufficiently justified reasons.”
Where necessary, a judge shall resolve disputes in this regard.
Article 115 states that representation of the marital union may be
exercised by the wife where the husband fails to do so, particularly where
he abandons the home, is imprisoned, or is otherwise absent.
Article 131 states that the husband shall administer the marital
Article 133 establishes exceptions to this rule on the same basis
set forth in Article 115.
Article 255 states that, where husband and wife exercise parental
authority over minor children, the husband shall represent the latter and
administer their goods.
Article 317 establishes that specific classes of persons may be
excused from exercising certain forms of custody, including, inter
The Commission received information about two initiatives in favor
of reform of those articles during the on-site visit it carried out in
Guatemala from August 6 to 11, 1998, but has yet to receive information as
to corresponding action by the plenary of the Congress.
Nor has it received information as to the outcome, if any, of the
constitutional challenge against Articles 113 and 114 which was presented
by the Attorney General before the Court of Constitutionality in 1996.
While the State appears to link the continuation of efforts in
favor of reform to its willingness to explore the option of friendly
settlement, the petitioners have indicated that they consider the
possibility of entering into friendly settlement negotiations to have been
explored and exhausted.
Paragraphs 28 and 29
refer to a general situation which the Commission examined during its
recent on-site visit to Guatemala, and to which it made reference in its
Report on the Situation of Women in the Americas.
(See references, infra.) In the concrete
case of María Eugenia Morales de Sierra, the Commission explicitly
addressed its competence ratione
personae in its Report 28/98 on admissibility:
With respect to the question of jurisdiction ratione personae, the Commission has previously explained that, in general, its competence under the individual case process pertains to facts involving the rights of a specific individual or individuals. See generally, IACHR, Case of Emérita Montoya González, Report 48/96, Case 11.553 (Costa Rica), in Annual Report of the IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997, paras. 28, 31. The Commission entertains a broader competence under Article 41.b of the Convention to address recommendations to member states for the adoption of progressive measures in favor of the protection of human rights.
to their original petition for a decision in
abstracto, which appeared to rely on the Commission's competence under
Article 41.b of the American Convention rather than that under Article
41.f, the petitioners modified their petition and named María Eugenia
Morales de Sierra as an individual victim, as previously noted, in their
communication of April 23, 1997. With
the identification of an individual victim, the Commission may advance
with its decision on admissibility in the present case.
As the Honorable Court has explained, in order to initiate the
procedures established in Articles 48 and 50 of the American Convention,
the Commission requires a petition denouncing a concrete violation with
respect to a specific individual. I.Ct.H.R.,
Advisory Opinion OC-14/94,
"International Responsibility for the Promulgation and Enforcement of
Laws in Violation of the Convention (Arts. 1 and 2 of the American
Convention)," of Dec. 9, 1994, para. 45, see
also, paras. 46-47. With
respect to the other contentious mechanisms of the system, Article 61.2 of
the Convention establishes, further, that "[i]n order for the Court
to hear a case, it is necessary that the procedures set forth in ...
[those Articles] shall have been completed."
"The contentious jurisdiction of the Court is intended to
protect the rights and freedoms of specific individuals, not to resolve
abstract questions." Id.
The right of María Eugenia Morales de Sierra
to equal protection of and
before the law
The right to equal protection of the law set forth in Article 24 of
the American Convention requires that national legislation accord its
protections without discrimination. Differences
in treatment in otherwise similar circumstances are not necessarily
A distinction which is based on “reasonable and objective
criteria” may serve a legitimate state interest in conformity with the
terms of Article 24.
It may, in fact, be required to achieve justice or to protect
persons requiring the application of special measures.
A distinction based on reasonable and objective criteria (1)
pursues a legitimate aim and (2) employs means which are proportional to
the end sought.
Pursuant to the status of Guatemala as a State Party to the
Convention on the Elimination of All Forms of Discrimination against
and the terms of Article 29 of the American Convention,
it must be noted that Article 15.1 of the former requires that States
Parties shall ensure that women are accorded equality with men before the
law. Article 15(2) specifies
that women must be accorded the same legal capacity as men in civil
matters, particularly with respect to concluding contracts and
administering property, and the same opportunities to exercise that
against women as defined in this Convention is:
distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other
responding as it does to the specific causes and consequences of gender
discrimination, covers forms of systemic disadvantage affecting women that
prior standards may not have contemplated.
In the proceedings before the Commission, the State has not
controverted that Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317
of the Civil Code create distinctions between married women and married
men which are based on sex. In
fact, it has acknowledged that aspects of the challenged provisions are
inconsistent with the equality and non-discrimination provisions of the
Constitution, the American Convention and the Convention on the
Elimination of All Forms of Discrimination against Women.
Notwithstanding that recognition, however, the June 24, 1993
decision of the Court of Constitutionality on the validity of the cited
articles remains the authoritative application and interpretation of
national law. That decision
bases itself on the fact that the Constitution establishes that men and
women are entitled to equality of opportunities and responsibilities,
whatever their civil status, as well as to equality of rights within
marriage. It notes that
certain human rights treaties, including the Convention on the Elimination
of All Forms of Discrimination against Women, form part of internal law.
In its analysis of Article 109, the Court indicates that the legal
attribution of representation of the marital unit to the husband is
justified by reason of “certainty and juridical security.”
This does not give rise to discrimination against the wife, the
Court continues, as she is free to dispose of her own goods, and both
spouses are attributed with equal authority within the home. The Court
validates Article 115 on the same basis. With respect to Article 131, which vests authority in the
husband to administer jointly held property, the Court recalls that,
pursuant to Article 109, both spouses shall decide on matters concerning
the family economy, including whether property shall be held separately or
jointly. In the absence of
such a decision, reasons of certainty and juridical security justify the
application of Article 131. The
Court finds Article 133 valid on the same basis.
In analyzing Article 110, which attributes responsibility for
sustaining the home to the husband, and responsibility for caring for
minor children and the home to the wife, the Court emphasizes the mutual
support spouses must provide each other and the need to protect the
marital home and any children. The
division of roles is not aimed at discriminating, the Court finds, but at
protecting the wife in her role as mother, and at protecting the children.
The woman is not prejudiced; rather, the provisions enhance her
authority. In analyzing
Articles 113 and 114, which permit a woman to pursue work outside the home
to the extent this does not conflict with her duties within it, the Court
states that these contain no prohibition on the rights of the woman. As no right is absolute, the Articles contain limitations
aimed primarily at protecting the children of the union. Consistent with the duties of each spouse, the husband may
oppose his wife’s activities outside the home only if he offers adequate
sustenance and has justified reasons.
The disposition that a judge shall decide in the event of a
disagreement protects against the possibility of arbitrary action, as it
ensures that the husband’s reasons refer to the legally defined role of
the wife and the protection of the children.
The Commission observes that the guarantees of equality and
non-discrimination underpinning the American Convention and American
Declaration of the Rights and Duties of Man reflect essential bases for
the very concept of human rights. As
the Inter-American Court has stated, these principles “are inherent in
the idea of the oneness in dignity and worth of all human beings.”
Statutory distinctions based on status criteria, such as, for
example, race or sex, therefore necessarily give rise to heightened
scrutiny. What the European
Court and Commission have stated is also true for the Americas, that as
“the advancement of the equality of the sexes is today a major goal,”
… “very weighty reasons would have to be put forward” to justify a
distinction based solely on the ground of sex.
The gender-based distinctions under study have been upheld as a
matter of domestic law essentially on the basis of the need for certainty
and juridical security, the need to protect the marital home and children,
respect for traditional Guatemalan values, and in certain cases, the need
to protect women in their capacity as wives and mothers.
However, the Court of Constitutionality made no effort to probe the
validity of these assertions or to weigh alternative positions, and the
Commission is not persuaded that the distinctions cited are even
consistent with the aims articulated.
For example, the fact that Article 109 excludes a married woman
from representing the marital union, except in extreme circumstances,
neither contributes to the orderly administration of justice, nor does it
favor her protection or that of the home or children.
To the contrary, it deprives a married woman of the legal capacity
necessary to invoke the judicial protection which the orderly
administration of justice and the American Convention require be made
available to every person.
By requiring married women to depend on their husbands to represent
the union–in this case María Eugenia Morales de Sierra–the terms of
the Civil Code mandate a system in which the ability of approximately half
the married population to act on a range of essential matters is
subordinated to the will of the other half.
The overarching effect of the challenged provisions is to deny
married women legal autonomy.
The fact that the Civil Code deprives María
Eugenia Morales de Sierra, as a married
woman, of legal capacities to which other Guatemalans are entitled leaves
her rights vulnerable to violation without recourse.
In the instant case the Commission finds that the gender-based
distinctions established in the challenged articles cannot be justified,
and contravene the rights of María Eugenia Morales de Sierra set forth in
Article 24. These restrictions are of immediate effect, arising simply by
virtue of the fact that the cited provisions are in force.
As a married woman, she is denied protections on the basis of her
sex which married men and other Guatemalans are accorded.
The provisions she challenges restrict, inter
alia, her legal capacity, her access to resources, her ability to
enter into certain kinds of contracts (relating, for example, to property
held jointly with her husband), to administer such property, and to invoke
administrative or judicial recourse.
They have the further effect of reinforcing systemic disadvantages
which impede the ability of the victim to exercise a host of other rights
The case of María Eugenia Morales de Sierra and
rights of the family: equality of rights and balancing of responsibilities in
Article 17(1) of the American Convention establishes rights
pertaining to family life pursuant to the disposition that, as “the
natural and fundamental group unit of society,” the family “is
entitled to protection by society and the state.”
The right to marry and found a family is subject to certain
conditions of national law, although the limitations thereby introduced
must not be so restrictive “that the very essence of the right is
impaired.” Article 17(4), which
derives from Article 16(1) of the Universal Declaration of Human Rights,
specifies that “States Parties shall take appropriate steps to ensure
the equality of rights and the adequate balancing of responsibilities”
in marriage and its dissolution. In
this regard, Article 17(4) is the “concrete application” of the
general principle of equal protection and non-discrimination of Article 24
In the case of Guatemala and other States Parties, the Convention
on the Elimination of All Forms of Discrimination against Women specifies
steps that must be taken to ensure substantive equality in family law and
family relations. Pursuant to
Article 16 of that Convention, States Parties are required to ensure, inter alia, “on the basis of equality between men and women,”
the same rights and duties with respect to the exercise of custody or
other types of guardianship of children; the “same personal rights …
to choose a family name, a profession and an occupation;” and the same
rights with respect to the ownership, administration and disposition of
The petitioners have indicated that the cited articles of the Civil
Code impede the ability of wife and husband to equally exercise their
rights and fulfill their responsibilities in marriage.
María Eugenia Morales
de Sierra alleges that, although her
family life is based on the principle of reciprocal respect, the fact that
the law vests exclusive authority in her husband to represent the marital
union and their minor child creates a disequilibrium in the weight of the
authority exercised by each spouse within their marriage--an imbalance
which may be perceived within the family, community and society. While the
victim, as a parent, has the right and duty to protect the best interests
of her minor child, the law strips her of the legal capacity she requires
to do that.
As discussed above, the challenged articles of the Civil Code
establish distinct roles for each spouse.
The husband is responsible for sustaining the home financially, and
the wife is responsible for caring for the home and children (Article
110). The wife may work outside the home only to the extent this
does not prejudice her legally defined role within it (Article 113), in
which case her husband has the right to oppose such activities (Article
114). The husband represents
the marital union (Article 109), controls jointly held property (Article
131), represents the minor children, and administers their property
(Article 255). The Court of Constitutionality characterized the State’s
regulation of matrimony as providing certainty and juridical security to
each spouse, and defended the disposition of roles on the basis that the
norms set forth preferences which are not discriminatory, but protective.
The Commission finds that, far from ensuring the “equality of
rights and adequate balancing of responsibilities” within marriage, the
cited provisions institutionalize imbalances in the rights and duties of
the spouses. While Article
110 suggests a division of labor between a husband’s financial
responsibilities and the wife’s domestic responsibilities, it must be
noted that, pursuant to Article 111, a wife with a separate source of
income is required to contribute to the maintenance of the household, or
to fully support it if her husband is unable to do so.
The fact that the law vests a series of legal capacities
exclusively in the husband establishes a situation of de
jure dependency for the wife and creates an insurmountable
disequilibrium in the spousal authority within the marriage.
Moreover, the dispositions of the Civil Code apply stereotyped
notions of the roles of women and men which perpetuate de
facto discrimination against women in the family sphere, and which
have the further effect of impeding the ability of men to fully develop
their roles within the marriage and family.
The articles at issue create imbalances in family life, inhibiting
the role of men with respect to the home and children, and in that sense
depriving children of the full and equal attention of both parents.
“A stable family is one which is based on principles of equity,
justice and individual fulfillment for each member.”
In the case of Ms. Morales de Sierra, the Commission concludes that
the challenged articles controvert the duty of the State to protect the
family by mandating a regime which prevents the victim from exercising her
rights and responsibilities within marriage on an equal footing with her
spouse. The State has failed
to take steps to ensure the equality of rights and balancing of
responsibilities within marriage. Accordingly,
in this case, the marital regime in effect is incompatible with the terms
of Article 17(4) of the American Convention, read with reference to the
requirements of Article 16(1) of the Convention on the Elimination of All
Forms of Discrimination Against Women.
Commission member Marta Altolaguirre, national of Guatemala, did not
participate in the discussion or vote on this Report, pursuant to
Article 19(2) of the IACHR’s Regulations.
Report 28/98 is published in Annual
Report of the IACHR 1997, OEA/Ser.L/V/II.98, Doc. 7 rev., April
13, 1998, at p. 144.
See generally, Report 28/98,
supra, paras. 23, 27 and 20.
Article 109 of the Civil Code establishes: “(Representation of the
The husband shall represent the marital union, but both spouses
shall enjoy equal authority and considerations in the home; they shall
establish their place of residence by common agreement and shall
arrange everything concerning the education and establishment of their
children, as well as the family budget."
Article 110 of the Civil Code establishes:
“(Protection of the wife). The husband must provide
protection and assistance to his wife and is obliged to supply
everything needed to sustain the home in accordance with his economic
wife has the special right and duty to attend to and look after her
children while they are minors and to manage the household chores.”
Article 113 of the Civil Code establishes:
“(Wife employed outside the home).
The wife may perform work, (38) exercise a profession,
business, occupation, or trade, (39) provided that her activity does
not prejudice the interests and care of the children or other
responsibilities in the home.”
[Notes 38 and 39 refer to articles of the Constitution and
Article 114 of the Civil Code establishes:
“The husband may object to his wife pursuing activities
outside the home, so long as he provides adequately for maintenance of
the home and has sufficiently justified grounds for objection.
The judge shall rule outright on the issue.”
Article 115 of the Civil Code establishes:
“(Representation by the wife).
Representation of the marital union shall be exercised by the
wife should the husband fail to do so for any reason and particularly
when : 1)
If the husband is legally deprived of that right; 2) If the
husband abandons the home of his own free will, or is declared to be
absent; and 3) If the husband is sentenced to imprisonment and for the
duration of such imprisonment.”
Article 131 of the Civil Code establishes:
“Under the system of absolute joint ownership [comunidad absoluta] by husband and wife or community of property
acquired during marriage [comunidad
de gananciales], the husband shall administer the marital
property, exercising powers that shall not exceed the limits of normal
spouse or common-law spouse shall dispose freely of goods registered
under his or her name in the public registries, without prejudice to
the obligation to account to the other for any disposal of common
Article 133 of the Civil Code establishes:
“(Administration by the wife).
Administration of the marital property shall be transferred to
the wife in the instances set forth in Article 115, with the same
powers, restrictions, and responsibilities as those established in the
Article 255 of the Civil Code establishes:
“Where husband and wife, or common-law spouses, jointly
exercise parental authority over minor children, the husband shall
represent the minor or incompetent children and administer their
Article 317 of the Civil Code establishes:
The following may be excused from exercising custody and
1) Those already exercising another custody or guardianship; 2)
Persons over sixty years of age; 3) Those who have three or more
children under their parental authority; 4) Women; 5) Persons of
low-income for whom this responsibility would threaten their means of
subsistence; 6) Persons prevented from exercising this responsibility
due to chronic illness; and 7) Those who have to be absent from the
country for over one year.”
Report, supra, paras. 30,
See e.g., Eur. Ct. H.R.,
Belgian Linguistics Case, Ser. A No. 6, p. 34, para. 10.
See generally, id.; U.N.H.R.
Committee, Broeks v. The Netherlands, Comm. No. 172/1984, para. 13,
Zwaan de Vries v. The Netherlands, Comm. No. 182/1984, para. 13.
See e.g., I/A Court H.R.,
Advisory Opinion OC-4/84, “Proposed Amendments to the Naturalization
Provisions of the Constitution of Costa Rica," January 19, 1984,
See e.g. Belgian Linguistics
ratified the Convention on August 12, 1982.
See I/A Court H.R., “Other
Treaties” Subject to the Advisory Jurisdiction of the Court (Art. 64
American Convention on Human Rights), Advisory Opinion OC-1/82 of
September 24, 1982.
Series A No. 1.
Advisory Opinion OC-4, supra,
See e.g., Eur. Ct. H.R.,
Karlheinz Schmidt v. Germany, Ser. A No. 291-B, 18 July 1994, para 24,
citing, Schuler-Zgraggen v.
Switzerland, Ser. A
No. 263, 24 June 1993, para. 67,
Burghartz v. Switzerland, Ser. A No. 280-B, 22 Feb. 1994, para. 27.
See generally, Committee on
the Elimination of Discrimination against Women (CEDAW), General
Recom. 21, “Equality in marriage and family relations,” U.N. Doc.
HRI\GEN\1\Rev.1 at 90 (1994), para. 7.
See generally, U.N.H.R.
Committee, Ato del Avellanal v. Peru, Comm. No. 202/1986, para.
Eur. Ct. H.R., Rees v. United Kingdom, Ser. A
No. 106, 17 Oct. 1986, para. 50.
See OC-4/84, para. 66.
CEDAW, General Recom. 21,
supra, para. 24.