B.-J. v. Germany
From DADEL
Case Summary
Ms. B.-J. v. Germany
Committee on the Elimination of Discrimination against Women
Communication No.: 1/2003
(Decision adopted on 14 July 2004, thirty-first session)
The author of the communication, Ms. B.-J, alleged a violation by Germany of articles 1, 2 (a-f), 3, 5 (a and b), 15 (2) and 16 (1.c, d, g and h) of the Convention on the Elimination of All Forms of Discrimination against Women.
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Facts
The author and her husband married in 1969. The author discontinued her education and became a homemaker in order to facilitate the husband's development of his career. Though the author later wished to return to her education and pursue her own career, her husband was opposed. The author's husband filed for divorce in 1999, and the divorce became final on 28 July 2000. In addition to the divorce, a decision was also finalized at that time on equalization of pensions, according to German law. In April 2004, the author was awarded maintenance, and appealed against the decision. However, as of the date of the author's communication, decisions were still pending on both the equalization of accrued gains and the appeal regarding maintenance.
The author submitted a complaint to the Federal Constitutional Court on 10 July 2000, arguing that the statutory regulations related to the German law on the legal consequences of divorce put women at a disadvantage, creating a violation of her right to equal treatment under the German Constitution. On 30 August 2000, the Constitutional Court declined to accept the author's complaint for decision. The author also wrote to several government ministries, alleging "disregard for marriage and family," as well as claiming that she had suffered gender discrimination by the courts.
The author's complaint to the Committee alleged that the regulations for equalization of accrued gains and pensions, and for maintenance after divorce, were discriminatory towards women, in that they were not based on a thorough evaluation of the inequality of "human capital" that develops between a husband and a wife over a long marriage. The author argued that through social custom, men almost always advanced their careers substantially during marriage, while women almost always gave up education and career advancement when they married, in order to devote themselves exclusively to their families. The author claimed that the divorce regulations put women at a distinct disadvantage, particularly older women with children, because the law failed to take into account the fact that women who divorced after a long marriage consistently found themselves in a substantially weaker position than men, with respect to education, career, and finances. The author's complaint alleged that she had suffered from this discrimination, and that the violation was ongoing.
Admissibility
The committee found impediments to admissibility relating to the timing of the claim and to exhaustion of domestic remedies. The Committee concluded that the author had not made a convincing argument that she suffered an ongoing violation, and therefore the relevant date for determining admissibility was the date on which the divorce became final, 28 July 2000. As this date occurred before the Optional Protocol entered into force in Germany on 15 April 2002, the Committee ruled that it could not consider the claim regarding the equalization of pensions, which was decided at the same time as the divorce. The Committee also noted that the author's appeal of the divorce decree had not properly addressed the issue of equalization of pensions, and therefore her claim regarding equalization of pensions would also be inadmissible for failure to exhaust domestic remedies.
The Committee accepted the State party's contention that the author's complaint to the Federal Constitutional Court had been inadmissible for a number of reasons. The Committee stated that an "improperly filed constitutional complaint" could not serve as the basis for determining that the author had fully exhausted domestic remedies. Lastly, the Committee recalled that proceedings on maintenance and on equalization of accrued gains were still pending at the time of the complaint, and concluded that the author had not convincingly argued that the proceedings "ha[d] been unreasonably prolonged or [were] unlikely to bring relief."
Decision
The Committee concluded that the application was inadmissible under Article 4, Paragraph 1, as the author did not exhaust domestic remedies, and under Paragraph 2 (e) as the relevant facts occurred because the facts occurred before the Optional Protocol entered into force in Germany.
Dissent
Two members of Committee dissented to the Committee's decision, considering the communication to be partly admissible. The dissenting Committee members agreed with the majority's conclusion that the part of the claim regarding the divorce decree and the equalization of pensions was inadmissible because it related to facts that occurred before the entry into force of the Optional Protocol. However, the dissenting members found the claims related to equalization of accrued gains and to maintenance to be admissible, in accordance with the exception to exhaustion of domestic remedies when domestic proceedings are "unreasonably prolonged or unlikely to bring relief." The dissenting members noted that the case had been ongoing for five years without final resolution. Given that the proceedings directly affected the author's fundamental ability to support herself materially (as an older woman with little work experience and little prospect of entering the job market), and given that the initial matter – "the divorce itself –" was resolved in only one year, the dissenting members considered the prolongation of the proceedings to have been unreasonable. As such, the two dissenting Committee members would have applied the exception to the rule requiring exhaustion of domestic remedies, and would have found the claim admissible.
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