Joint tenure and titling for spouses

This section does not intend to address all forms of shared tenure, such as family tenure, communal tenure, community titling, and land market transactions, but rather focuses on joint titling and tenure when the state carries out land distribution programs allocating titles, uses, leases or other rights to land and housing, and for women in marriage or non-formal, conjugal unions. 

Compulsory joint tenure
Legislation should provide for compulsory joint tenure as the default regime when conducting land or housing allocation to households or when spouses marry. In this case, both spouses will hold land and/or housing either through a joint title or by holding equal rights over the property. Non-formal unions should also be subject to compulsory joint tenure or co-ownership. (See: UN-Habitat, Policy Makers Guide to Women’s Land, Property and Housing Rights across the World, 2007; UN-HABITAT, Shared Tenure Options for Women, 2005) Drafters should repeal optional joint tenure as the default regime in these cases. 

Illustrative Example:

Rwanda’s Organic Land Law provides three alternative matrimonial regimes for spouses to choose from, but if no affirmative choice is elected, spouses are presumed to be married under the community of property regime and maintain joint ownership of their moveable, immovable, present and future property. In effect, therefore, women who have attained beneficial rights to land (such as through marriage or inheritance) are protected under the law. The law also specifies that consent from all beneficiaries must be obtained in case of any land transfer, mortgage or lease. (See: Arts. 34-38). The law applies only to legal, non-polygamous marriages.

Compulsory joint titling
Where states allocate lands or housing using a titling scheme or reform marital property systems, legislation should provide for compulsory joint titling of marital property, particularly in societies that bequeath land through the patrilineal side. Non-formal unions should also be subject to compulsory joint titling or to co-ownership/co-tenureship where documentation or fee requirements hinder such registration. 

Illustrative Examples:  

  • Chile: There is a presumption in law of joint titling for all property acquired during a marriage under Article 135 of the Código Civil.
  • Dominican Republic: The default marital property regime is partial community property and both spouses administer jointly held property under the law. See: Código Civil, Articles 1400-1421.
  • Lesotho: The Land Act 2010, Art. 10(1), makes clear that “where persons who are married in community of property either under civil, customary, or any other law and irrespective of the date in which the marriage was entered into, any title to immovable property allocated to or acquired by anyone of them shall be deemed to be allocated to or acquired by both partners, and any title to such property shall be held jointly by both.”