- Legislation should guarantee equal rights and responsibilities to women and men in marriage.Typical provisions may include language similar to that in the Constitution of Kenya (2010):
Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. (Art. 45(3))
CASE STUDY: Legislation should develop and promote the use of a model marriage contract to protect the rights of women and widows. Global Rights has undertaken an initiative to promote women’s use of the marriage contract to secure their rights in the Maghreb region. The Moroccan Family Code (Article 47, 48), Algerian Family Code (Article 19) and 1956 Tunisian Personal Status Code (Article 11) allow spouses to negotiate and incorporate additional clauses into the marriage contract. Women can use these contracts to protect their rights in marriage and at its dissolution by stipulating clauses on property ownership and division, children, monogamy clauses, her right to work, accounting of unpaid contributions to the household, and matters requiring her consent. For example, the Model Marriage Contract addresses property rights and financial relations, allowing spouses to stipulate ownership, administration, use and disposition of property acquired prior to the marriage and during the marriage.
Spouses may consider establishing an equitable and rights protective framework for their financial relations in the marriage contract on the following issues:
• Contribution to household obligations: The contribution of each spouse in money, property and/or efforts to household obligations, and clarification of all costs considered household expenses;
• Financial maintenance: The husband’s financial obligations towards his wife and children after dissolution of the marriage;
• Property ownership and division: Definition of personal property and joint property (money, movable property, real estate), ownership of assets during marriage, powers to use, manage and dispose of personal and/or joint property during marriage, and division of property upon dissolution of the marriage.
Likewise, the contract includes a section for spouses to address children:
On Child Custody:
Custody of any children shall be shared jointly by the spouses for the duration of the marriage and in order to protect the children’s interests and attend to their upbringing.
In the event that the present marriage is dissolved, the father hereby undertakes not to take legal action to have child custody removed from the mother on the grounds of (insert grounds in the national laws according fathers the right to have child custody automatically removed from the mother, such as her remarriage or relocation far from the father), but to base any such legal action solely on other objective grounds related to the best interests of the child.
On Child Guardianship:
Legal guardianship of any children shall be shared jointly by the spouses for the duration of the marriage as well as following its dissolution. The husband hereby designates the wife as the testamentary guardian of any children.
The development of such a model contract should be made in consultation with women, widows and civil society and take into account the current context. (See: Global Rights, Conditions, Not Conflict: Promoting Women’s Human Rights in the Maghreb through Strategic Use of the Marriage Contract, 2008)
- Legislation should guarantee to women and men the same rights and responsibilities with regard to matters relating to their children, including guardianship, wardship, trusteeship and adoption. CEDAW, Art. 16(1)(d),(f). Laws and practices that remove the child from a widow’s custody upon the death of her husband violate women’s rights to be free from discrimination in marriage and family relations. Drafters should ensure that widows automatically become the guardian of their children upon the death of their husband. Laws should recognize that every child is entitled to enjoy parental care and protection and has the right to reside with his or her parents. Protocol to the African Charter on the Rights and Welfare of the Child, Art. 19(1); Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Art. 20(b). Separation of a child from his or her parent against the child’s will should be barred save in circumstances where a competent authority has determined in accordance with law and procedures that such separation is in the child’s best interests.Protocol to the African Charter on the Rights and Welfare of the Child, Art. 19(1); Convention on the Rights of the Child,Convention on the Rights of the Child,Art. 9(1).
Cote d’Ivoire amended its marriage law to eliminate several discriminatory provisions. Article 58 in the new law specifies that the family is managed by both spouses in the interests of the children and that both parents are responsible for the moral and economic development of the family so as to provide benefits for the children.
Mozambique’s Family Law (2004) specifies that both spouses have responsibility over the family and can decide who will represent the family on a particular issue. In the past, women often had to demonstrate their husband’s consent in relation to many family decisions. See: Mozambique’s Family Law Passes (Oxfam, n.d.)
Administration of Property and Entering into Contracts
- Legislation should grant equal rights to both spouses to administer property and enter into contracts. CEDAW, Gen. Rec. No. 29.
Promising Practice: Namibia’s Married Persons Equality Act of 1996 repeals restrictions placed on the wife’s legal capacity to enter into contracts and litigate, including restrictions on her capacity to:
(i) to register immovable property in her name;
(ii) to act as an executrix of a deceased estate;
(iii) to act as a trustee of an insolvent estate;
(iv) to act as a director of a company; and
(v) to bind herself as surety; and
(b) that the common law position of the husband as head of the family is abolished, provided that nothing herein shall be construed to prevent a husband and wife from agreeing between themselves to assign to one of them, or both, any particular role or responsibility within the family(Article 3).
Article 5 states that spouses married in community of property have equal capacity:
(a) to dispose of the assets of the joint estate;
(b) to contract debts for which the joint estate is liable; and
(c) to administer the joint estate.
Promising Practice: Countries should amend laws that grant differential rights to marital property between men and women, including the right to take legal action in relation to that property. The case of Graciela Ato del Avellanal v. Peru (1988) (Spanish) was brought to the United Nations Human Rights Committee challenging a Peruvian law that granted only the husband, not the wife, the power to take action in relation to matrimonial property claims against third parties. The Human Rights Committee found that the law denied women equality before the courts, a violation of Article 14(1) of the International Covenant on Civil and Political Rights, as well as finding that the law was discriminatory and violated the right to equal protection of the laws. The Committee also stated that “With regard to discrimination on the ground of sex the Committee notes further that under article 3 of the Covenant State parties undertake "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant" and that article 26 provides that all persons are equal before the law and are entitled to the equal protection of the law. The Committee finds that the facts before it reveal that the application of article 168 of the Peruvian Civil Code to the author resulted in denying her equality before the courts and constituted discrimination on the ground of sex.”
Marital Property Systems
- Legislation should provide for a modified or partial community of property system in marriage to best protect women and widows. A list of countries using the partial community property regime is available here. In the modified or partial community of property regime, property and money obtained during the marriage are considered joint property, even if registered under only one spouse’s name. Income and inheritance bequeathed jointly to both spouses (unless stipulated otherwise) are considered joint property. Property and assets acquired before marriage remains separate property and belongs to each respective person. A modified or partial community of property system may offer better protection of women than a full community of property system. For example, in cases where females are not allowed to inherit from their fathers or husbands, they may bring into the marriage their own property, such as stridhan, which belongs to them throughout marriage and at its termination. Allowing a full community of property system that converts her pre-marital property into joint property could jeopardize this protection for women who are otherwise unable to inherit. Also, a modified or partial community of property system may protect women entering a marriage with their own wealth from potential abuse from their husbands. This community of property system may prevent abuse by males who marry seeking wealth and intend to divorce their wives later. It may also prevent abuse by males who marry seeking wealth from the bride and/or her family, which could be a potential risk factor for dowry-related violence. (See: Dowry-Related Violence)
- Both spouses should have equal rights in the joint administration of marital property. CEDAW, Gen. Rec. No. 29. In addition, both spouses should be entitled to joint titling of major assets, including the land and house, which requires the consent of both parties for mortgage, lease or sale. An absence of documentation to the contrary should create the presumption of joint titling over major assets for married persons. (See: Knox, Anna, et al., Connecting Rights to Reality: A Progressive Framework of Core Legal Protections for Women’s Property Rights, International Center for Research on Women; Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009)
- Drafters should repeal laws that institute the following marital property systems as the default regime and convert them to optional systems that both spouses mutually agree to before a notary public or other competent authority:
- Division of shared property based on use: This system gives property to the spouse who acquired it, unless the property was used jointly by both spouses or for the family. Basing division of property on use is ambiguous and does not promote gender equality.
- Separation of property: Each spouse personally owns his or her property acquired prior to marriage, as well as property acquired during marriage that is registered in his or her name or received as a personal gift or inheritance. In regions where most property is registered under the man’s name, this system has a discriminatory impact on women upon dissolution as she has no title and therefore no claim to those assets.
- Absolute or full community of property: All property acquired by both spouses prior to and during the marriage becomes community of property. In states where women are denied equal inheritance rights as men, the personal property, assets, dower, and inheritance they bring into a marriage is an important reserve for them. An absolute community of property system denies them this safeguard in the event of dissolution or separation. Also, in regions where dowry and dower exchange is practiced, or where talaq divorce under Sunni Muslim tradition is recognized, it may increase their vulnerability to domestic violence and denial of due process in divorce proceedings.
- Drafters should replace these systems with modified or partial community of property systems as the default regime.
Turkey: Drafters should amend legislation to provide for modified or partial community of property as the default system unless both parties mutually opt out before a notary or other authority. Turkey introduced legal reforms in its civil code that promote women’s human rights with respect to marital property. Prior to the reforms, Turkey’s default marital property system was complete separation of property, where each spouse is the owner of any property registered under his or her name. As most property tended to be registered under the husband’s name, this deprived women of much of the marital property upon dissolution. The reforms introduced a default system of equal division of acquired property, so that both spouses receive an equal portion of all property acquired during the marriage. Each spouse retains individual ownership rights over his or her personal property, or that acquired prior to the marriage or received as personal gifts during the marriage. Also, amendments grant both spouses equal rights over acquired property and the marital home. The law is not retroactive to property acquired prior to 2002, however, unless spouses registered their marriage before 2003. (See: Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006; Women’s Ways for Human Rights, Turkish Civil Code Turkish Civil and Penal Code Reforms from a Gender Perspective: The Success of Two Nationwide Campaigns)
Ethiopia: Drafters should adopt legislation to recognize non-formal, consensual unions and ensure that marital property laws extend to these unions. Ethiopia presumes joint property in the absence of documentation, with the default being partial or full community of property. It mandates joint administration of marital property that requires the consent of spouses. Also, Ethiopia recognizes consensual unions providing they have existed for a minimum of three years and are registered.
Morocco: Morocco amended its Family Code in 2004 and introduced a number of provisions to promote gender equality. The code grants husbands and wives joint responsibility for the family and grants adult women the right to exercise self-guardianship freely and independently. It also allows for the spouses to develop in a written document an agreement for management of assets acquired during the marriage. Where the parties disagree, a judicial determination based on the rules of evidence will be made to ascertain each party’s contribution to the development of the family’s assets. (See: Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006)
Women’s Unpaid Contribution to the Household
- Legislation should also ensure that marital property systems account for women’s informal contribution to joint marital property. Laws should recognize women’s unpaid domestic labor, childrearing, and agricultural work as contributions to the value of marital property. A marital property system that provides for equal division of all property acquired during marriage (except for personal gifts to one spouse) upon dissolution achieves this recognition of women’s unpaid contribution to the household and marital property.
- Research has documented what many have long known to be true, that poor women in the global south carry heavier workloads than do men, when unpaid labor is accounted for. According to a 2013 ActionAid report, unpaid tasks such as cooking, cleaning, collecting water and firewood, and caring for the ill, elderly and children, is essential to maintaining the household but it is the fundamental support for the family’s economic development. Stability at home provides a basis for other forms of economic advancement. Ensuring that laws on inheritance account for women’s contribution in this way is critical. See: Making Care Visible – Women’s unpaid care work in Nepal, Nigeria, Uganda and Kenya (Action Aid, 2013).
CASE STUDY: A formal system of accounting for women’s unpaid labor and contributions may strengthen their inheritance claims. Such a system may avoid the harmful effects of a case such as Gyamaah v. Buor (Ghana High Court, 1962). In this case, a widow who assisted her husband, the deceased, in developing and cultivating eleven cocoa farms sought a court order declaring that she was entitled to a share of the farms upon his death. Ownership of the farms had passed to others, who were the heirs through customary laws of inheritance. The lower court held in favor of the widow’s right to a share of the property on the grounds that she had assisted in the cultivation of the farms. On appeal, the high court overturned the lower court order, holding that the widow had no right to the property, and could receive a share of the property only because the heir had previously agreed to share an unspecified portion of the property with the widow. The court held that, based on the custom of the parties, the wife was not entitled to any specific share of the property, but would receive “however little,” the defendant heir might choose to give her, in his absolute discretion. Significantly, the high court opined that had the widow’s assistance been in the form of a substantial financial contribution, she would have been “entitled as of right to a share in the properties acquired by her husband,” but a contribution of labor alone would not give the widow such right.
Information gathering and monitoring
- Legislation should require a comprehensive review of all formal and customary laws to ensure equality of rights and responsibilities in marriage between women and men. Legal reviews should pay particular attention to achieving consistencies among and within laws. For example, drafters should ensure that statutory laws comply with and transpose constitutional provisions that guarantee equality to women in marriage and family relations.
- Legislation should mandate that customary and religious systems grant women and men equal rights and responsibilities in marriage, or legislation should state that civil statutory provisions guaranteeing equality will have supremacy over other discriminatory systems. Legislation should state that conflicts between civil and customary or religious laws are to be resolved in a manner that promotes gender equality and respects women’s rights. Drafters must provide for public awareness and outreach about these laws to communities and religious and traditional leaders to facilitate implementation.
- Legislation should require studies on laws and practices throughout the country to understand the nature and extent of discrimination against women and girls in marriage and property regimes. Such studies should examine formal marriages, de facto marriages, consensual unions, polygamous marriages (if applicable), and customary marriages. Legislation should establish and support monitoring mechanisms to evaluate implementation of laws governing equality in family relations and marriage.