Women and Justice: Topics: Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Legislation

Constitution of the Republic of Uganda (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 21 of the Constitution of Republic of Uganda prohibits gender discrimination generally and enshrines the principle of equality before the law. It states that “[a]ll persons are equal before and under the law in all spheres of political, economic, social and cultural life”; that they “shall enjoy equal protection of the law”; and that a “person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.”
In Article 31, the Constitution sets the minimum age for marriage at 18 and specifies that “men and women are entitled to equal rights in marriage, during marriage and at its dissolution.” Article 33 pertains specifically to the rights of women and provides that “The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement”; that “Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities”; and that “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.”



The Married Persons Property Act of 2014 (2014)

Property and inheritance rights

The Married Persons Property Act of 2014 permits couples to change their marital property regime (i.e., in or out of community property). The Act applies ex post facto, and any couple married under the old act need only approach the High Court to change their property regime in or out of community of property. Change of property regime can be done only once during a marriage.



The Abolition of Marital Power Act 34 of 2004 (2004)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The full title of the Abolition of Marital Power Act 34 of 2004 is “An Act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married women, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto.” The Act provides for equal powers in property ownership for spouses. It also gives women equal powers to assume guardianship of minor children and in determining the domicile of their children. Furthermore, it removes the common law position of the husband as head of the family. Its effect is limited to common law marriage; it has no effect on customary or religious marriages (couples may marry under customary or common law).



Lei de Terras: Lei nº 19/97 (Land Law) (1997)

Property and inheritance rights

The law governs ownership and use of land. Articles 10 and 15 of the law provide that women have the same right as men to use and manage land. The law also provides that land can be inherited regardless of gender. However, article 12 states that land acquisition requires compliance with “customary norms and practices that are not contrary to the Constitution.”



Lei da Família: Lei nº 10/2004 (Family Code) (2004)

Divorce and dissolution of marriage, Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The law defines family relationships and establishes certain “rights of the family.” The law prohibits various forms of discrimination against women, including through polygamy, inheritance, age at marriage and choice of children. The law defines marriage as a “voluntary union between a man and a woman”, which requires mutual consent. Coerced marriage is subject to annulment. The law provides that both husband and wife have the right to “represent the family”, to administer the family finances, and to work. The law also outlines provisions for divorce. Husbands are required to pay child support in case of divorce,



2011 Amendments to the Constitution of Jamaica (2011)

Gender discrimination, Property and inheritance rights

The 2011 Amendments to the Jamaican Constitution specifically enumerated a “right to freedom from discrimination on the ground of . . . being male or female.”  The amendments also guaranteed a number of fundamental rights and freedoms, including the right to be free from inhuman or degrading treatment and torture, and protection of the right to own property, receive an education, vote, and speak freely.



Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)

Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases. Unofficial English translation available here.



Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)

Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases.



Reform of Customary Law of Succession and Regulation of Related Matters Act 11 (2009)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.



Promotion of Equality and Prevention of Unfair Discrimination Act (2000)

Employment discrimination, Female genital mutilation or female genital cutting, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act is to give effect to section 9 of the Constitution of the Republic of South Africa, read in conjunction with item 23(1) of its sixth schedule. The effect of this is to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Section 8 expands on the provisions of Section 9 by setting out, without limitation, the following specific examples of such prohibited discrimination: (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; (e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as health education and social security; (h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons; and (i) systemic inequality of access to opportunities by women as a result of the sexual division of labor.  The Act further regulates which party will bear the burden of proof in discrimination cases and further sets out which factors should be taken into account in determining whether discrimination is fair or unfair.



中华人民共和国妇女权益保障法 (Law on the Protection of Women's Rights and Interests) (2005)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Law on the Protection of Women’s Rights and Interests was adopted by the National People’s Congress on April 3, 1999 and amended on August 28, 2005. This Law stipulates that women have equal rights with men “in all aspects of political, economic, cultural, social and family life.” It also establishes the State’s responsibility to prevent domestic violence. Article 1 provides that “this Law is formulated to protect women’s lawful rights and interests, promote equality between men and women and allow full pay to women’s role in socialist modernization.” Article 7 provides that “[t]he All-China Women’s Federation and women’s federations at various levels shall, in accordance with the laws and charter of the All-China Women’s Federation,” uphold women’s rights and protect the rights and interests of women. Article 12 provides that the State shall “actively train and select female cadres” and “pay attention to the training and selection of female cadres of minority nationalities.” Article 23 provides that “[w]ith the exception of the special types of work or post unsuitable to women, no unit may, in employing staff and workers, refuse to employ women because of sex or raise the employment standards for women.” Article 23 also provides that “[t]he labor (employment) contract or service agreement shall not contain restrictions on her matrimony and child-bearing.” Articles 24 and 25 stipulate equal pay and equal opportunity for promotion for men and women. Article 26 provides that all units shall “protect women’s safety and health during their work or physical labor, and shall not assign them any work or physical labor not suitable to women,” and that “[w]omen shall be under special protection during menstrual period, pregnancy, obstetrical period and nursing period.” Article 27 provides that “[n]o entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee’s wage, dismiss her or unilaterally terminate the labor (employment) contract or service agreement.” Article 45 prohibits husbands from applying for a divorce “within one year after childbearing or within 6 months after termination of pregnancy” of a woman. Article 46 prohibits domestic violence. Article 51 provides that “[w]omen have the right to child-bearing in accordance with relevant regulations of the state as well as the freedom not to bear any child.”

堕胎与生育权、家庭暴力、性别歧视、财产与继承权

1992年4月3日,全国人民代表大会通过了中华人民共和国妇女权益保障法并于2005年8月28日对此法进行了修正。本法规定妇女在政治的、经济的、文化的、社会的和家庭的生活等各方面享有同男子平等的权利。本法规定了国家预防和制止家庭暴力的责任。第一条阐述了“为了保障妇女的合法权益,促进男女平等, 充分发挥妇女在社会主义现代化建设中的作用,根据宪法和我国的实际情况,制定本法。”第七条规定,中华全国妇女联合会和地方各级妇女联合会依照法律和中华全国妇女联合会章程,代表和维护各族各界妇女的利益,应做好维护妇女权益的工作。第十二条规定, 国家积极培养和选拔女干部,并有适当数量的妇女担任领导成员, 国家重视培养和选拔少数民族女干部。第二十三条规定,各单位在录用职工时,除不适合妇女的工种或者岗位外,不得以性别为由拒绝录用妇女或者提高 对妇女的录用标准。第十三条还规定,劳动(聘用)合同或者服务协议中不得规定限制女职工结婚、生育的内容。第二十三和二十四条规定了男女同工同酬和晋升、晋级等方面男女平等。第二十六条规定,任何单位均应根据妇女的特点,依法保护妇女在工作和劳动时的安全和健康,不得安排不适合妇女从事的工作和劳动,妇女在经期、孕期、产期、哺乳期受特殊保护。第二十七条规定任何单位不得因结婚、怀孕、产假、哺 乳等情形,降低女职工的工资,辞退女职工,单方解除劳动(聘用)合同或者服务协议。第四十五条规定女方在怀孕期间、分娩后一年内或者终止妊娠后六个月内,男方不得提出离婚。第四十六条禁止家庭暴力。第五十一条规定 妇女有按照国家有关规定生育子女的权利,也有不生育的自由。



中华人民共和国宪法(第四十八-四十九条)(The Constitution of the People's Republic of China (Articles 48-49)) (2004)

Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The Constitution of the People’s Republic of China was adopted by the National People’s Congress and promulgated for implementation on December 4, 1982. It has been amended several times, with the most recent amendment occurring on March 14, 2004.  Article 48 provides that women and men have equal rights. It states that “[w]omen in the People’s Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women.” Article 49, moreover, provides that “violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited.” English version available here. 

就业、包办婚姻与早婚、性别歧视、财产与继承权

第五届全国人民代表大会于1982年12月4日通过中华人民共和国宪法。宪法经过几次修正,其中最近一次修正发生于2004年3月14日。第四十八条规定妇女享有同男子平等的权利。第十四条规定“中华人民共和国妇女在政治的、经济的、文化的、社会的和家庭的生 活等各方面享有同男子平等的权利。国家保护妇女的权利和利益,实行男女同工同酬,培养和选拔妇女干部。” 第四十九条规定禁止破坏婚姻自由,禁止虐待老人、妇女和儿童。



Administration of Estates Act (2002)

Harmful traditional practices, Property and inheritance rights

The AE Act removed inheritance laws unfavorable to widows in civil and registered customary marriages. It recognizes a union contracted according to customary rites, even without formal registration under the Customary Marriages Act of 1951 (currently under Parliamentary review as of July 17, 2019). The AE Act provides that the property of an estate is to be divided by the surviving spouse and the children, regardless of the sex of the children. It also stipulates that a widow whose husband died intestate retains rights to the family’s land upon the death of her husband.



Constitution of Zimbabwe (Amendment No. 20) (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.



Code of Virginia: Property Rights of Married Women (Va. Code § 55-35)

Gender discrimination, Property and inheritance rights

This Virginia law provides that a married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried. 



Virginia Human Rights Act (Va. Code Ann. §§ 2.2-3900-03) (2014)

Employment discrimination, Gender discrimination, Property and inheritance rights

Virginia’s Human Rights Act outlines the policy of the Commonwealth to “[s]afeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation,” including in education, real estate, and employment. The Act defines the “unlawful discriminatory practice” and “gender discrimination” as conduct that violates any Virginia or federal statute or regulation governing discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. The terms “because of sex or gender” or “on the basis of sex or gender” or similar terms in reference to discrimination in the Code and acts of the General Assembly include pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities.



Rhode Island Fair Housing Practices Act (Title 34, Chapter 37, General Laws of Rhode Island)

Gender discrimination, LGBTIQ, Property and inheritance rights

The Rhode Island Fair Housing Practices Act prohibits housing practices that discriminate based on gender identity or expression, which is defined to include a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.



23 Pa. C.S.A. § 3701, Domestic Relations - Alimony and Support (1990)

Divorce and dissolution of marriage, Property and inheritance rights

The determination of the nature, amount, and duration of alimony is based on the court’s weighing of several factors. Among the factors considered by the court in its alimony determination are the following: (1) the relative earnings of the parties; (2) the ages and the physical, mental, and emotional conditions of the parties; (3) the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; (4) the expectancies and inheritances of the parties; (5) the duration of the marriage; (6) the contribution by one party to the education, training, or increased earning power of the other party; (7) the extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child; (8) the standard of living of the parties established during the marriage; (9) the relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) the relative assets and liabilities of the parties; (11) the property brought to the marriage by either party; (12) the contribution of a spouse as homemaker; (13) the relative needs of the parties; (14) the marital misconduct of either of the parties during the marriage; (15) the Federal, State, and local tax ramifications of the alimony award; (16) whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 to provide for the party’s reasonable needs; and (17) whether the party seeking alimony is incapable of self-support through appropriate employment.



23 Pa. C.S.A. § 3501, Domestic Relations - Property Division (1990)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania is an equitable distribution state, which means the court will “equitably and fairly” divide, distribute, or assign the marital property between the parties, regardless of marital misconduct. “Marital property” generally means all property acquired by either spouse during the marriage. All property acquired by a spouse during their marriage is presumed to be marital property regardless of how title is held. In making its “equitable and fair” division of marital property, the court will weigh numerous factors, which include: the length of the marriage; any prior marriage of either party; the age, health, station, amount, and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the contribution by one party to the education, training, or increased earning power of the other party; the opportunity of each party for future acquisitions of capital assets and income; the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; the economic circumstances of each party at the time the division of property is to become effective; the federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned; the expense of sale, transfer, or liquidation associated with a particular asset; and whether the party will be serving as the custodian of any dependent minor child(ren).



Communal Land Reform Act (2002)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.



Children's Status Act (2006)

Gender discrimination, Property and inheritance rights

Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights. 



Married Persons Equality Act (1996)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.



Codice Civil (2019)

Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Italian Civil Code provides for succession and inheritance, each of which require equal treatment of male and female children (Book II, Title I). In cases in which the conduct of a spouse or co-habitant causes serious physical or mental harm to the other spouse or co-habitant, but the conduct does not constitute a criminal act, the court may issue a family order of protection. A judge may order the party concerned to stay away from the home, the spouse's place of work, the residences of extended family members, and the children's school (Book I, TItle IX, art. 342). The judge can also order the intervention of social services or a family mediation center.



Código de la Familia (Family Code - Law No. 1289 of February 14, 1975) (1994)

Divorce and dissolution of marriage, Property and inheritance rights

Divorce in Cuba results in the dissolution of matrimonial ties and all other effects described in Article 49 of the Family Code. Pursuant to Article 50, divorce can be obtained by judicial decree or notarial deed. Prior to the enactment of the Second Final Disposition of Law No. 154 (“Law No. 154”), divorce in Cuba could only be obtained by means of judicial decree. However, Law No. 154 liberalized the means to obtain a divorce by allowing divorce to be effected by notarial deed. Divorce can be achieved by the mutual agreement of the spouses or when the tribunal confirms that the specific circumstances make divorce in the best interest of the spouses and the children and, as a result, for society. The law considers that a marriage has “lost sense”   for the spouses and their children and, hence, for society as a whole, when there are causes that create a situation in which, objectively, marriage is no longer, or cannot in the future be, the union of a man and a woman which allows them to exercise the rights, satisfy the obligations and achieve the objectives mentioned in Articles 24 through 28 (inclusive) of the Family Code. The law makes clear that each of the parties can exercise the option of divorce at any time during which the motivating cause exists. If the spouses have lived together for more than one year or had children during the marriage, the tribunal will award alimony to one of them in the following cases: (1) to the spouse that does not have a paying job and lacks other means of sustenance (this type of alimony is provisional and will be payable by the other spouse for six months if there are no minor children being taken care of by the receiving spouse or for one year if there are such minor children, so that the receiving spouse can obtain a paying job); and (2) to a spouse which as a result of incapacity, age, illness or other insurmountable impediment is unable to work and lacks other means of substance. In this case, the alimony will continue as long as the obstacle persists.

 

El divorcio en Cuba resulta en la disolución de los lazos matrimoniales y todos los demás efectos descritos en el Artículo 49 del Código de la Familia. En conformidad con el Artículo 50, el divorcio se puede obtener por decreto judicial o escritura notarial. Antes de la promulgación de la Segunda Disposición Final de la Ley No. 154 ("Ley No. 154"), el divorcio en Cuba solo podía obtenerse mediante un decreto judicial. Sin embargo, la Ley No. 154 liberalizó los medios para obtener un divorcio al permitir que se efectúe mediante escritura notarial. El divorcio puede lograrse mediante el acuerdo mutuo de los cónyuges o cuando el tribunal confirma que las circunstancias específicas hacen que el divorcio sea en el mejor interés de los cónyuges y los hijos y, como resultado, para la sociedad. La Ley considera que un matrimonio ha "perdido el sentido" para los cónyuges y sus hijos y, por lo tanto, para la sociedad en su conjunto, cuando hay causas que crean una situación en la que, objetivamente, el matrimonio ya no es, o no puede ser, en el futuro. La unión de un hombre y una mujer les permite ejercer los derechos, cumplir con las obligaciones y lograr los objetivos mencionados en los Artículos 24 a 28 (inclusive) del Código de la Familia. La ley deja claro que cada una de las partes puede ejercer la opción de divorcio en cualquier momento durante el cual exista la causa motivadora. Si los cónyuges han vivido juntos durante más de un año o han tenido hijos durante el matrimonio, el tribunal otorgará la pensión alimenticia a uno de ellos en los siguientes casos: (1) al cónyuge que no tiene un trabajo remunerado y carece de otros medios de sustentarse (este tipo de pensión alimenticia es provisional y será pagadero por el otro cónyuge durante seis meses si el cónyuge que recibe no cuida a los niños menores de edad o por un año si hay tales hijos menores, para que el cónyuge que los recibe pueda obtener un trabajo remunerado); y (2) a un cónyuge que, como resultado de una incapacidad, edad, enfermedad u otro impedimento insuperable, no pueda trabajar y carezca de otros medios de sustancia. En este caso, la pensión alimenticia continuará mientras persista el obstáculo.



Law No. 1 of 1974 Marriage Law (1974)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Property and inheritance rights

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.



Domestic Violence Act (2000)

Domestic and intimate partner violence, Property and inheritance rights

Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims.  It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases.  The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence.  Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months.  (Section 21)



Revised Family Code (2000)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The current family law in Ethiopia provides that there must be, inter alia, consent by both spouses to constitute a valid marriage (Article 6); respect and support between spouses (Article 49); equal rights in the management of the family (Article 50); fidelity owed by both husband and wife (Article 56). This is a substantial step forward in Ethiopian law.



Domestic Violence (Amendment) Act 2017 (2017)

Domestic and intimate partner violence, Property and inheritance rights, Sexual harassment, Stalking

Prevent gaps in protection. An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding.Strengthen the IPO to prevent further abuse. With the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor – so police can intervene before further violence happens.Expand the definition of domestic violence. The expanded definition will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty.Improve rehabilitation provisions. A court can no longer order a survivor to attend reconciliatory counselling with the abuser, which puts the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation programme.Recognise survivor’s right to exclusive occupancy. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy – not just a specified part of the residence.Keep survivors better informed. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates.Create the Emergency Protection Order (EPO). The EPO helps survivors get protection faster – EPOs are issued by social welfare officers who are easily accessible (IPOs are issued by magistrates). Survivors won’t have to make a police report to get an EPO. The EPO is valid for seven days, and protects against physical injury and fear of physical injury.


Social and Economic Development Policy Act (2006)

Abortion and reproductive health rights, Employment discrimination, Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

Section 7 (Gender Equity, Equality and Empowerment) provides for: (a) gender equality through gender policy aimed at the elimination of structural gender biases and increased participation in education; (b) strengthening the activities of Ministry of Gender Development and women’s rights NGOs; (c) adequate protection from violence through penal and civil sanctions; (d) protection of female children, notably from female genital mutilation, early marriage, and teenage pregnancy; (e) increasing women’s participation in labour force and policy and economic institutions; (f) elimination of legal and customary practices which are barriers to ownership of land, capital and other property; and (g) establishing reproductive health services.



Equal Rights of the Customary Marriage Law of 1998 (1998)

Domestic and intimate partner violence, Dowry-related violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Equal Rights of the Customary Marriage Law of 1998 (the “Law”) repeals previous Liberian marriage laws and provides various rights and protections for women within the context of marriage. These include:

Entitling a wife to one-third of her husband’s property (Section 2.3).Providing that a husband must respect his wife’s human rights (Section 2.5).Affirming that a wife’s property acquired before and during the marriage is exclusively hers; she can deal with this property in her own name as she sees fit without consent of her husband (Section 2.6(a)).Confirming that every woman has a right to marry a man of her choosing (Section 2.10).Entitling a wife to one-third of her husband’s property when her husband dies (Section 3.2).Entitling a widow to remain on the premises of her late husband (or to take another husband of her choice and vacate the late husband’s premises) (Section 3.3).Entitling a widow to administer her husband’s estate by making a petition to the probate court of their jurisdiction (Section 3.5).

The law also prohibits some of the common harmful practices towards wives, including: 1)  husband taking a dowry from his wife or his wife’s parents (Section 2.2); 2) arranging for a girl under the age of 16 to be given in marriage to a man (Section 2.9); 3) compelling a widow to marry a member of her late husband’s family (Section 3.4(a)).



Civil Code of Iran (Inheritance) (1969)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

With regards to inheritance law (Arts. 906-915), a widow inherits less than a widower in Iran.  A widow inherits one-quarter of her deceased husband’s property if the deceased husband left no children behind, and one-eighth if he did leave children behind.  In contrast, a surviving husband inherits half of his deceased wife’s property if she left no children behind and one-quarter if she did leave children behind (Art. 913).  Consistent with this pattern, under Iranian Civil Code Article 907, sons inherit twice as much as daughters when a parent is deceased.



Civil Code of Iran (Citizenship) (1969)

Gender discrimination, Property and inheritance rights

Article 976 states that children born to Iranian fathers are considered Iranian subjects. No clause exists extending the same rights to children born of Iranian mothers where the child’s father is not Iranian. This provision demonstrates that Iranian women cannot pass on their Iranian nationality to their children. 



Civil Code of Iran (Marital Duties) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

According to Iranian law, the husband is the exclusive holder of the position of “head of the family”  (Art. 1105).  As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times.  This is the tamkin (submission) requirement of Sharia law.  If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114).  If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling.  If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).



Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


Equal Opportunity for Women Act (Legislative Decree 34-2000) (2000)

Employment discrimination, Gender-based violence in general, Property and inheritance rights

The Equal Opportunity for Women Act (the “Act”), enacted by this decree 34-2000, eliminates “all forms of discrimination against women” and guarantees equality in the eyes of the law and in the areas of family, health, education, culture, work, social security, credit, and land ownership. Moreover, the Act promotes participation by women in decision-making within the power structure and expressly states that women are eligible to run for public office. This law is significant because it was intended to create and expand the scope of representation and participation of Honduran women in civil society.

 

La Ley de Igualdad de Oportunidades para la Mujer (la "Ley"), promulgada por este decreto 34-2000, elimina "todas las formas de discriminación contra la mujer" y garantiza la igualdad de género ante la ley y en las áreas de la familia, la salud, la educación, Cultura, trabajo, seguridad social, crédito y propiedad de la tierra. Además, la Ley promueve la participación de las mujeres en la toma de decisiones dentro de la estructura de poder y establece expresamente que las mujeres son elegibles para postularse para cargos públicos. Esta ley es importante porque tiene la intención de crear y ampliar el alcance de la representación y participación de las mujeres hondureñas en la sociedad civil.



Succession Act (Amendment) Decree 22/72 of 1972 (1972)

Gender discrimination, Property and inheritance rights

Uganda allows for customary law to govern many situations, but the Succession Act restricts their applicability in inheritance cases.  It enshrines women’s right to inherit from husbands, but also privileges men because 1) the property of a married woman who dies intestate automatically will go to her spouse, unlike a man who dies intestate; 2) the matrimonial home will go to the legal heir, the determination of which prioritizes male relatives; 3) a widow (or widows in polygamous marriages, who must share) may only inherit 15% of her husband’s estate; and 4) maintenance and occupancy rights of widows terminate if they remarry.  

Original Act (1906)



Land Act of 1998 (amended 2004, 2010) (1998)

Property and inheritance rights

The Land Act, after amendments, protects a spouse’s occupancy of family land and requires their consent for any transaction involving the land on which they live or use for sustenance, but does not provide for automatic co-ownership between spouses.  Any decision that unconstitutionally disfavors the property rights of women and children is invalid.  The Act also requires that land management mechanisms have at least 1/3 female members.

2004 Amendments (spousal rights added)

2010 Amendments



Domestic Case Law

Babumba v. Kizito High Court of Uganda (1992)

Property and inheritance rights

Here, the Court held that “having a child or children by the deceased is not enough to confer on the woman widowhood.” Consequently, the claimant was unable to inherit property from her deceased partner.



Kagwa v. Muteteri High Court of Uganda (Family Division) (2005)

Divorce and dissolution of marriage, Property and inheritance rights

Here, the Court held that the termination of a marriage should lead to the division of matrimonial property between the two spouses. This rule applies when both spouses have contributed, financially or otherwise, toward the acquisition of the property. In this case, even though the marriage between the two partners was declared void, the Court held that the two matrimonial properties should be divided between the partners. The Court also held that custody arrangements should not excessively restrict the access of one parent to the child.



Douglas v. CTML Pty Ltd. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination, Property and inheritance rights

The decision of the tribunal was only in relation to whether to approve the respondent’s application to dismiss the complaint.  The respondent’s application was denied because there were real factual issues in dispute.  It appears that the substantive trial has not yet commenced (or alternatively a settlement was reached).  In any case, this case is relevant as it illustrates the discrimination women may face in Australia when seeking to establish themselves in a secure environment and raise their children.  The complainant was a single mother who sought to rent an apartment from the respondent.  The complaint rested upon the allegation that the complainant’s tenancy application had been rejected (and she was not even allowed to see the property) as a result of the complainant intending on having her young son live with her in the rental property.  



Processo nº 35/2011 Supreme Court (2011)

Divorce and dissolution of marriage, Property and inheritance rights

In a proceeding following a divorce, the appellant wife argued that she had married her husband under a regime of separate property. The court determined that a couple married under such a regime can only switch to a community property regime upon agreement between the parties, which had not occurred in this case.



Govender v. Ragavayah High Court of South Africa: Durban and Coast Local Division (2008)

Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Hindu rites. Accordingly, when her husband died intestate, his parents stood to inherit his estate. The applicant sought a declaratory judgment that the word “spouse” as used in the Intestate Succession Act 81 of 1987 includes a surviving partner to a monogamous Hindu marriage. The Court granted the declaratory judgment and held that the applicant was entitled to inherit from her deceased husband.



Moosa N.O. and Others v. Harnaker and Others High Court of South Africa: Western Cape Division (2017)

Gender discrimination, Property and inheritance rights

The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.



Daniels v. Campbell and Others Constitutional Court (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis. The Court held that the word “spouse” as used in the Intestate Succession Act includes the surviving partner to a monogamous Muslim marriage and that the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.



Bhe and Others v. Khayelitsha Magistrate Constitutional Court (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.



Dlanjwa v. Minister of Safety and Security Supreme Court of Appeal (2015)

Domestic and intimate partner violence, Property and inheritance rights

The appellant was shot by her husband, who subsequently committed suicide.  Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased.  The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials.  The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998.  The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant.  The court therefore upheld the appeal.



Women's Legal Centre Trust v. President of the Republic of South Africa and Others High Court of South Africa: Western Cape Division (2018)

Gender discrimination, Property and inheritance rights

The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court.  They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa.  The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court.  The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex.  The court directed the President, Cabinet, and Parliament to prepare and bring into operation legislation to recognise marriages performed in accordance with Sharia law.



刘彩丽与张飞离婚纠纷,安徽省阜阳市中级人民法院 (Liu v. Zhang) Intermediate People's Court of Fuyang Municipality Anhui Province (2014)

Divorce and dissolution of marriage, Property and inheritance rights

Liu and Zhang held the wedding ceremony in 2009 and registered for marriage in 2011.  In order to marry Liu, Zhang paid a “bride price” of 96,080 Chinese yuan, and Liu’s dowry included a television, refrigerator, washing machine and several pieces of furniture. Liu filed for divorce in 2013, and Zhang requested Liu to return part or all of the bride price. The court found that the bride price was paid for the purpose of marrying Liu, and its payment led to difficulty in Zhang’s parents’ life after Zhang’s marriage. Thus, the court held that Liu was required to return a portion of the bride price. Considering the length of Zhang and Liu’s marriage and their standard of living during that time, the Court ordered Liu to return 32,000 Chinese yuan of the bride price. Moreover, the court found that Liu’s dowry was Liu’s personal property and Zhang had no interest therein.  Available here. 

离婚、财产与继承权

刘某与张某于2009年举办婚礼,于2011年办理结婚登记。张某为与刘某缔结婚姻关系,付给彩礼人民币96080元。刘某的嫁妆包括电视、冰箱、洗衣机和几件家具。刘某于2013年提起诉讼,要求与张某离婚,张某要求刘某退还彩礼。法院认为张某付给的彩礼是为了与刘某缔结婚姻关系,彩礼数额巨大,导致婚后张某家庭生活困难。法院判决刘某应退还张某部分彩礼。综合考量两人共同生活的时间及消费状况,法院判决刘某退还张某彩礼款32000元。同时,刘某的嫁妆属刘某个人财产,应依法由其个人所有。



Hosho v. Hasisi High Court of Zimbabwe (2015)

Harmful traditional practices, Property and inheritance rights

This was a dispute involving property in the name of the plaintiff and occupied by the defendant. The plaintiff sought an order for the eviction of the defendant, claiming that he had lawfully acquired the property. The defendant claimed that she was the rightful owner as the surviving spouse of the previous owner of the property through an unregistered customary law union. The court held that defendant had no right to the property as there was no concrete evidence supporting the existence of her customary marriage. The court explained that although the absence of a formal marriage certificate is not fatal to the recognition of a customary law union in matters of inheritance and constitutional protections for surviving spouses and children, the union must be proven to exist. Payment of a roora/lobola, or bride price, remains the most cogent and valid proof of a customary union/marriage, particularly where it has not been formally registered because the ceremony itself involves representatives from both families and others who could attest to the process having taken place. Furthermore, there is often documentary evidence of what had been paid and what remained to be paid. Here, the court held for the plaintiff because there was no evidence of a roora/lobola payment and the defendant could not prove her customary marriage to the deceased.



Congdon v. Congdon Court of Appeals of Virginia: Richmond (2003)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

In this divorce case, the husband appealed the trial court’s decision to grant spousal support to the wife notwithstanding her adultery, based on the court’s finding that manifest injustice would otherwise result.  The appellant and the appellee were married for 20 years and had two children.  The appellant had a stable career in the trucking business and earned $250,000 per year and had assets totaling more than $6 million.  The appellee was the primary caretaker for the children and worked part-time as a receptionist earning $10 an hour.  She did not contest that she had an affair for at least five years during the marriage.  The court noted, however, that the evidence “portrayed the appellant  as a profane and verbally abusive man,” who frequented “strip joints and topless bars,” and frequently boasted and bragged about these experiences in lewd terms in front of the appellee and their children.  He was also verbally abusive to his children.  Several witnesses testified that “they had never once seen [him] show any affection or any kindness toward [his wife],” and that he “chronically complained” to the appellee and others about her “weight, appearance, housekeeping, and spending habits.”  The trial court explained that Va. Code § 20-107.1(B)the law precludes an award of support to any spouse found guilty of adultery, subject to narrow exceptions, including when the trial court determines from “clear and convincing evidence, that denial of support and maintenance would constitute manifest injustice, based upon the respective degrees of fault during the marriage or relative economic circumstances of the parties. The question before the court was whether the trial court committed a reversible error in stating that the statutory standard for deciding if a denial of support and maintenance constitutes a manifest injustice involved considering “either” the respective degrees of fault during the marriage “or” the relative economic circumstances of the parties.  In affirming the ruling of the trial court, the Court of Appeals held that the trial court erred, but also that it was a harmless error as it was supported by facts that satisfied the correct standard. The court determined that the proper standard for determining if a denial of spousal support would constitute a manifest injustice must consider “both” the comparative economic circumstances “and” the respective degrees of fault, i.e., the test was a conjunctive test rather than the disjunctive test used by the trial court.  Nevertheless, the Court of Appeals affirmed the ruling under correct test.  With respect to the relative degrees of fault, the Court of Appeals explained that adultery was not dispositive and that a reasonable factfinder could conclude that appellant’s severe and longstanding abusive conduct went beyond “mere incivility or petulance” and tipped the scales in appellee’s favor.  Moreover, the Court of Appeals affirmed the trial court’s finding of “extreme disparities” in the relative economic situations of the parties.  Consequently, the trial court erred in stating the standard for determining if a denial of spousal support would cause manifest injustice as requiring either economic disparities or fault instead of both factors, but the error was harmless as the factual findings addressed both factors under the appropriate standard.



Bergaust v. Flaherty Court of Appeals of Virginia (2011)

Gender discrimination, Property and inheritance rights

The plaintiff, a mother, brought a petition for child support against the putative father.  The two met during a trip to France and had a long-distance relationship for 18 months.  After returning to Virginia from another visit to the defendant in France, the plaintiff learned she was pregnant.  Because the defendant was her only sexual partner during the relevant time period, she informed the defendant that the child was his.  The defendant said he would help in any way he could and called twice a week during the pregnancy.  Their child was born in Alexandria, Virginia, and the defendant continued to call regularly during this time.  When the child was seven months old, the defendant came to Virginia to meet and spend time with the child.  Following this visit, the defendant’s contact with the plaintiff decreased and ultimately ceased.  Several years later, the plaintiff learned of the defendant’s whereabouts and brought a petition for child support.  The circuit court dismissed the petition for lack of personal jurisdiction. The question before the Virginia Court of Appeals was whether the defendant had fathered a child in Virginia pursuant to the long-arm statute that provided, in part, that a court may exercise personal jurisdiction over a person when it is shown that the person “conceived or fathered” a child in Virginia.  The statute does not define the terms “conceived or fathered.”  In finding no personal jurisdiction, the Court of Appeals affirmed the circuit court’s interpretation of the term “fathered” to mean “to beget or to procreate as father,” rejecting the plaintiff’s argument that the term encompassed “the acknowledgment of parentage” while in Virginia.  Although the Court of Appeals acknowledged that the ordinary meaning of “fathered” includes “to make oneself the father…by acknowledgment,” the court concluded that if the state legislature had intended this broader meaning of the term, it “presumably would have included the word ‘mothered’ along with ‘conceived or fathered’ to encompass the non-custodial mother of a child living in [Virginia].”  Therefore, per Virginia law, the child was not fathered in Virginia and the long-arm statute could not grant personal jurisdiction over the matter.



deCamp v. deCamp Court of Appeals of Virginia: Chesapeake (2014)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant and the appellee were married for 21 years and had three children.  After the birth of their first child, by mutual agreement of the parties, the appellee stopped working and became a homemaker and the children’s primary caregiver. In adjudicating couple’s separation agreement, the trial court ordered the appellant to pay the appellee spousal support in addition to child support pursuant to statutory guidelines.  On appeal, the appellant raised several arguments including that the trial court failed to exclude child-related expenses that he already had to pay for through child support awarded to appellee and that the court erred in refusing to impute income to appellee even though she was voluntarily unemployed.  With respect to  the first argument, the court affirmed the trial court’s conclusion, explaining that expenses that are indivisible by nature or trivial in amount need not be segregated. Although “some of wife’s claimed expenses did indeed include expenses attributable to the children, such as Internet service fees, utilities, and food,” those expenses were properly included in the spousal support award because they were “indivisible by their very nature.”   With respect to the trial court’s refusal to impute income to the appellee, the court explained that “the law does not require wife return to work immediately upon divorce to avoid judicial imputation of income merely because she has provable earning capacity at the time of the divorce.”  Rather, any decision to impute income must be done “within a review of all the statutory factors concerning spousal support.”  Under the circumstances, the court found the trial court’s refusal to impute income to the appellee to be supported by the facts, given that the appellant  had been the sole monetary contributor for the entire duration of their marriage, the appellee had left her nursing career in order to be a full-time homemaker and caregiver for their children, and the family moved eight times over the course of the marriage in order to enable the appellant  to pursue and advance his military career. Thus, the refusal to impute any income to her was not an error.



23 Pa. C.S.A. § 4301, Domestic Relations - Child Support (1985)

Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania uses a system referred to as the “Income Shares Model” for determining child support. This methodology focuses primarily on the net incomes of the parents and aims to grant the children the same proportion of the parental income that he or she would have received had the parents not divorced.



Paschke v. Frans Supreme Court of Namibia (2015)

Gender discrimination, Property and inheritance rights

The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.



Clayton v. Clayton Supreme Court of New Zealand (2016)

Divorce and dissolution of marriage, Property and inheritance rights

This case concerned the determination of what constitutes relationship property in a divorce proceeding and how trusts may affect this determination (e.g. if a sham trust is implemented to hide assets, therefore affecting a woman’s economic rights in a divorce).  The term “relationship property” is defined in the Property Relationships Act of 1976, the principles of which focus on the equality of spouses and that at the end of a relationship, any economic divisions should reflect equal contributions made by the couple during the relationship.  However, any property constituting “trust property” is not available for division under the PRA.  In this case, the parties had been married for 17 years with two daughters.  During the marriage, the respondent-husband had become a successful business owner and set up several discretionary trusts.  The trusts ostensibly related to the business he had established.  The appellant-wife had assisted with her husband’s business ventures and was the main childcare provider during their marriage.  The Court concluded that, in this case, the powers under a trust deed constituted “property” under the PRA.  In applying the two-stage approach of section 182, the Court concluded that one of the discretionary trusts settled during the Clayton’s marriage constituted a nuptial trust under §182 of the Family Proceedings Act 1980 because of its connection to the marriage.  The court found that the “nature of the assets is not determinative of whether the settlement is nuptial or not,” and that a settlement “made for business reasons” and containing business assets can be a nuptial settlement.  The New Zealand Women’s Law Journal described this as a “decision that provided a much-needed step towards a more equal recognition of the traditional economic disadvantages faced by women.”



Supaul v. Lalchand Supreme Court of Belize (2018)

Divorce and dissolution of marriage, Property and inheritance rights

The issues in the preliminary hearing for this case were (i) whether the parties were involved in a common law union and what the material dates of that union were and (ii) whether an agreement entered into between the parties barred the applicant from bringing her claim for maintenance and division of property.  The applicant alleged that the parties lived together as man and wife for eight years.  The respondent claimed the first two years involved a sexual relationship only and that they did not live as man and wife for the last four years of their relationship because the relationship was unstable.  He also contended that the parties had “more of a business relationship.”  Under Belize law, a “common law union” is a “relationship that is established when a man and woman who are not legally married to each other and to any other person cohabit together continuously as husband and wife for a period of at least five years.”   The court analyzed the evidence of the relationship and found the respondent’s evidence to be “lacking in credibility.”  The court found there to have been a common law union for eight years.



Vasquez v. Vasquez Supreme Court of Belize (2017)

Divorce and dissolution of marriage, Property and inheritance rights

The petitioner applied to court for dissolution of marriage on the ground of respondent’s adultery, which was granted in 2010.  The petitioner then filed for maintenance for herself and their children as well as for other miscellaneous amounts for loans and medical expenses.  The court granted maintenance, which was being garnished from respondent’s salary.  The respondent contested the continuation of these payments.  Under Belize law, upon divorce the court has discretion to order a husband to pay maintenance to his former wife in an amount the court may think to be reasonable for the remainder of her life.  The court ordered a continuation of monthly maintenance payments based on the “practice that maintenance is generally awarded on the basis of one-third of the joint incomes of the parties, less the wife’s income” in order to “supply the former wife with the necessaries, comforts, and advantages incidental to her social position.”  The claims for loans and medical expenses were dismissed.



Flowers v. Jeffords Supreme Court of Belize (2018)

Property and inheritance rights

The claimant alleged that her common law husband passed away without a will.  His son, the defendant, attempted to evict her from the home she shared with the deceased prior to his death.  The claimant responded by bringing this administrative action to remove the son as the deceased’s personal representative and to be recognized as one of the lawful beneficiaries of the estate.  The son and the deceased’s other children from previous relationships alleged that the claimant was merely their father’s caretaker, but could provide no evidence she was ever paid and could not explain why she lived with their father prior to him falling ill.  Under Belize law, a common law union is defined as “an unmarried man and an unmarried woman, who share a mutual commitment publicly to live their life together as a couple and in fact do so for a continuous period of five years or more.”  The typical signs of such a union are that the parties “share the same household; the relationship is stable; there is financial support or the pooling of financial resources; there is a sexual relationship; there is public acknowledgement of the relationship and there may be children.”    The court analyzed all evidence presented on the nature of the claimant’s relationship with the deceased and held that the claimant was “the female party to a common-law union with [the deceased] up until the time of his death” and so she was a lawful beneficiary of the estate.



Barclay v. Digen Supreme Court of Liberia (2011)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Upon divorce, the husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her maiden name solely for herself. The court held that: (a) there is no legal significance of a woman choosing to use her husband’s surname; it does not affect the right of a woman to own property while married; (b) a woman can purchase property in her maiden name during marriage; (c) unless freely consented to, property which is owned solely by a husband’s wife cannot be controlled by her spouse.



Application by Court of First Instance to Annul a Certain Civil Law Constitutional Court (2016)

Divorce and dissolution of marriage, Property and inheritance rights

During a divorce proceeding, a matter arose regarding contribution and participation receivables, particularly the application of the Turkish Civil Code, Number 4721, Article 219, Sub-Article 2, Sub-Paragraph 5, dated November 22, 2001, which provides that the income from a personal asset is such spouse’s acquired asset. The court of first instance held that this provision violated the Constitution, Articles 2 and 35, because it unreasonably interfered with property rights and would, therefore, prevent civil marriages. The Constitutional Court, considered the Constitution, Article 35, which simply states that property rights are universal, and this right shall only be limited if public welfare requires. The Court also considered Article 13, which states that fundamental rights and freedoms may be limited only by statute, so long as the core of such rights, as well as other relevant constitutional provisions, are not affected. The Court also noted that Article 41 establishes the state’s positive obligation to promulgate regulations to protect and preserve the institution of the family. The Court held that, while the law in question limits property rights, this limitation does not affect the core of the right and is based on justifiable purposes, and the law in question does not violate the Constitution. The justifiable purpose is protecting families, and especially women, by requiring income from a personal asset to be mutually distributed, thereby promoting public welfare.



AP 2900/90 Tereza Usar Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2012)

International law, Property and inheritance rights

In 2007, Tereza Usar petitioned the Municipal Court in Mostar to recognize a common law marriage so that she could exercise her right to a family pension.  Usar had lived in a common-law marriage with Ivan Usar from July 1992 until September 1993 when he, a member of the Croatian Defence Council, was killed during the Bosnian War.  In the suit, Usar named as defendants the minor child she had with Ivan Usar and his legal heirs, his children from a previous marriage.  The Municipal Court dismissed Usar’s claim, finding her petition constituted a request to establish facts and not to enforce a right or legal relation because common-law marriage is not regulated by law, but is a factual situation of a union of a man and a woman.  The Cantonal Court in Mostar and the Supreme Court of the Federation of Bosnia and Herzegovina (“FBiH”) upheld the lower court’s dismissal.  In 2012, the Constitutional Court of BiH quashed the judgment of the Cantonal Court in Mostar, finding the Cantonal Court violated Usar’s right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention on Human Rights.  The appellate court found the lower court had arbitrarily applied the law in determining that common-law marriage is a factual and not a legal relation.  The Cantonal Court’s decision directly conflicted with Articles 213, 230-234, 263, and 380 of the Family Law of the FBiH, which prescribe the manner for the maintenance of common-law partners and children from common-law marriages, their property relations, and the procedure for obtaining protection against domestic violence.  That is, according to the Constitutional Court of BiH, the legislature of the FBiH did not make any distinction between marriage and common-law marriage with respect to legal relations.  Thus, “a life in common-law marriage implies certain rights and obligations, and hence, the existence of a legal relation between the persons who live or who had lived in a common-law marriage.”

Decision available in English here.



2012 (Ku) No. 984 Supreme Court of Japan (2013)

Property and inheritance rights

In this appeal, a child born out of wedlock appealed the High Court’s finding that a relevant part of the proviso to Article 900.4 of the Japanese Civil Code was not inconsistent with Article 14.1 of the Constitution of Japan, prohibiting discrimination based on race, belief, sex, social status, or lineage.  The proviso set forth that the statutory share in inheritance of a child born out of wedlock is half of that of a child in wedlock.  The Supreme Court reversed the High Court’s ruling and found that the proviso was inconsistent with Article 14.1 of the Constitution.  In making this finding, the Supreme Court took into account the changes in the following, which have been observed since 1947––the year in which the Japanese Civil Code was revised after World War II:  Japanese society, forms of family, legislative acts in foreign countries, and relevant Japanese legal frameworks.  The Supreme Court noted that, even though the system of civil marriage is strongly respected in Japanese society, society has come to accept the idea that a child should not suffer disadvantages based on a factor that she/he did not cause or could not change––whether to have been born in or out of wedlock––and that a child’s rights need to be protected and she/he must be given respect as an individual. 



Ponde v. Bwalya Supreme Court for Zambia (2016)

Divorce and dissolution of marriage, Property and inheritance rights

The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.



Joan v. Hodgson High Court for Zambia (2011)

Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (2008)

Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage.  Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes.  She was always the primary caregiver of the children.  After forty years, the marriage broke down irretrievably.  Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension.  In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court.  Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely.  The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages.  In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid.  The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW.  It held that the two provisions are patently discriminatory, unfair, and not justifiable.  In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment.  The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”



Ruling with Gender Perspective (Isolated Thesis Docket: VII.2o.C.127 C (10a.)) Second Collegiate Tribunal in Civil Matters of the First Circuit (2017)

Gender discrimination, Property and inheritance rights

“RULING WITH A GENDER PERSPECTIVE. IN ORDER TO PROPERLY ASSESS THE EVIDENCE, THE COURT MUST IDENTIFY A VULNERABLE SITUATION IN CASES WHERE A FAMILY CRISIS IS EVIDENT.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. As a reference, the Mexican Supreme Court has repeatedly instructed all Mexican courts to take gender perspective into account when ruling, even if the plaintiff does not formally request it. As background, the precedent that culminated in this isolated thesis arose from a dispute over a lease. The plaintiff, a housewife, offered testimonial evidence but was required to have her testimony corroborated by certain family members. Due to the plaintiff’s poor relationship with these family members, the family members provided false testimony in order to harm her. The Court ruled that this testimony should have been suppressed. In this case, the judge was required to take gender perspective into account, as the plaintiff was found to be in a vulnerable situation, given her status as a housewife. It is important to note that it has been proven that, historically, housewives have frequently been in a disadvantageous position. As a result, the Court was required to consider the plaintiff’s relationship with her family members in order to assess the evidence based on a gender perspective.

Original case available: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=205/02050000198348990005005.pdf_1&sec=DIANA_HELENA_SANCHEZ_ALVAREZ&svp=1

 

“VEREDICTOS CON UNA PERSPECTIVA DE GÉNERO. "PARA PODER EVALUAR ADECUADAMENTE LA EVIDENCIA, EL TRIBUNAL DEBE IDENTIFICAR UNA SITUACIÓN VULNERABLE EN CASOS EN QUE UNA CRISIS FAMILIAR SEA EVIDENTE."

Esta tesis aislada es un ejemplo relevante de la jurisprudencia con la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. Como referencia, la Corte Suprema de México ha ordenado en repetidas ocasiones a todos los tribunales mexicanos que tengan en cuenta la perspectiva de género cuando dictaminen, incluso si el demandante no lo solicita formalmente. Como antecedentes, el precedente que culminó en esta tesis aislada surgió de una disputa sobre un contrato de arrendamiento. La demandante, ama de casa, ofreció pruebas testimoniales, pero se le exigió que su testimonio fuera corroborado por ciertos miembros de la familia. Debido a la mala relación del demandante con estos miembros de la familia, ellos proporcionaron un testimonio falso para hacerle daño. El tribunal dictaminó que este testimonio debería haber sido suprimido. En este caso, se requirió que el juez tomara en cuenta la perspectiva de género, ya que se descubrió que la demandante estaba en una situación vulnerable, dada su condición de ama de casa. Es importante tener en cuenta que se ha demostrado que, históricamente, las amas de casa con frecuencia han estado en una posición desventajosa. Como resultado, se requirió que la Corte considerara la relación de la demandante con los miembros de su familia para evaluar las pruebas basadas en una perspectiva de género.



Nxumalo v. Ndlovu Supreme Court (2011)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.



Dlamini v. The Quadro Trust & 8 Others Supreme Court (2016)

Gender discrimination, Property and inheritance rights

The appellant sought to set aside a lower court’s decision and remove his deceased paternal grandmother’s estate executors. The lower court found that the appellant had no locus standi to bring forth the application as he was not the lawful beneficiary of his grandmother’s estate—he was born out of wedlock and his father predeceased his now deceased paternal grandmother. Therefore, the appellant had no right of inheritance intestate. The Supreme Court found that Section 31 of the Constitution (the abolition of the common law status of illegitimacy of a person born out of wedlock) abolishes the principle that children cannot inherit from their father. The Court upheld the appeal and found that the applicant had locus standi to institute or defend legal proceedings relating the deceased estate.



C.M. v. B.M.B. Court of Appeal of Ghent (2003)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Following an assault by her husband (which was interrupted when he sustained a heart attack and had to be hospitalized), a woman temporarily moved into a small studio above the shop she rented and in which she worked. She brought divorce proceedings shortly after the assault, which resulted in a lower court restraining order on both parties. The husband was to be allowed to stay in the couple’s family house on the theory that this was the best solution financially and because the restraining order would make it impossible for the man to live in the studio in the rented commercial property as the wife worked there on a daily basis. On appeal, the wife requested that she be allowed to live in the family house, while the husband claimed that he should be allowed to stay there given his more limited financial means (a pension allowance). The husband did not deny the violence, but minimized the facts, while the wife claimed that there were already tensions before the assault and that her husband’s heart attack had saved her life.  The Court of Appeal held that despite the absence of other witness declarations, the existence of a medical certificate supporting the woman’s claims as to the assault provided sufficient evidence of violence by the husband. The fact that the violence only occurred once did not change this and nor did the outcome of the pending criminal investigation. The Court held that, in accordance with the law of 28 January 2003 on domestic violence, the family home was to be assigned to the victim of such violence as no exceptional circumstances existed here to decide otherwise, despite an alleged imbalance in the financial means of the parties. The request by the wife for a maintenance allowance to cover the husband’s rent was rejected because the husband did not prove that the wife had a higher income and that the divorce proceedings would likely lead to financial compensation by the wife to the husband for the use of the family house.



B.M. v. R.C. Constitutional Court (2009)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined. The Civil Code was amended from mid-1976 by the Law of 14 July 1976 to remove this discrimination but contained transitional provisions requiring the old rules to continue to apply under certain circumstances. In the case at hand (in which the women failed to make a declaration within the old deadline), the Constitutional Court was asked if the old provisions still applied for marriages entered into before the amendments became applicable and dissolved after that date. The first court ruled that the deadline no longer applied (as there was no basis for it because men and women acquired equal rights to manage matrimonial property in 1976), but it took successive appeals, culminating in an appeal before the Belgian Supreme Court, to confirm this and annul the relevant transitional provisions.



Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea High Court of Lesotho (Constitutional Division) (2013)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief.  Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act.  Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother.  The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child.  Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution.  The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship.  It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages.  The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief.  The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.



Estate of Lerionka Ole Ntutu High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters.  After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance.  The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate.  The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom.  The judge thus held that none of the daughters could inherit from their father’s estate.  In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate.  On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community.  The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied.  The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.



Mmusi v. Ramantele High Court of Botswana at Gaborone (2012)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them.  The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs.  The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child.  The rest of the property was to be divided among the children, regardless of gender.  The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew.  The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under s 3(a) of the Constitution of Botswana.  On 12 October 2012, the High Court subsequently awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property.  On 3 September 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”  This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana.



Individual Application of Mesude Kırıklı and Asil Akça Constitutional Court (2015)

Gender discrimination, Property and inheritance rights

Ms. Kirikli and Mr. Akça (the “Petitioners”) brought a land registration case against their uncle A.S requesting the annulment of a land transfer between their grandfather M.S. and A.S. The Petitioners claimed that M.S. had conducted a dubious transaction where he sold his land to A.S. in return for a very low price in order to prevent his late daughter’s children, the Petitioners, from inheriting the land. The Court of First Instance rejected their case on the grounds that whether M.S.’s motive was to cut his heirs off from their inheritance could not be proven and that it was reasonable that M.S., who had financial troubles at the time, sought to quickly relieve those troubles by selling his only asset for a considerably low price. The Court of Appeals agreed with the lower court, which led to the Petitioners’ application to the Constitutional Court. The Constitutional Court refused to hear the case because of a time limitation.



Re Namugerwa & 2 Others High Court at Jinja (2010)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The aunt of three children applied for guardianship of the children and the land they inherited following the death of their father.  The Court was unable to determine some critical information, including whether the children had a surviving parent and the source of the funds the aunt used to care for the children.  The Court was also concerned that the children’s mother might be alive and the automatic guardian, but that the aunt was chosen because she was related to the children’s male parent.  Under most customary community traditions in Uganda, being a paternal ancestor would give the aunt guardianship priority over the mother.  The Constitutional Court found these practices unconstitutional.



Seedis v. Chief Execution Officer & Schmuel Seedis Supreme Court (as an article 55 Special Tribunal) (1954)

Property and inheritance rights

A woman petitioned the article 55 Special Tribunal, which decides whether a case is of personal status and thus within the exclusive jurisdiction of a Religious Court, for review of the Rabbinical Court’s decision to allow her husband to receive rent from a property belonging to the plaintiff.  The Rabbinical Court exercised jurisdiction pursuant to Article 51 and 53 of the Palestine Order in Council 1922, which states that “suits regarding marriage” or “matters of marriage” are within the exclusive jurisdiction of the religious courts. The Special Tribunal agreed with the Rabbinical Court’s decision to exercise jurisdiction over the suit, reasoning that articles 51 and 53 are not limited to questions regarding the existence of a marriage, but also include claims for the enforcement of rights derived from marriage, including property rights.



Lesia v. Lesia High Court of Lesotho (2013)

Domestic and intimate partner violence, Property and inheritance rights

Mrs. Lesia filed an application for relief against her husband, alleging that he abandoned his family, abused her, and was attempting to sell their home without her consent. She alleged that she built and paid for the home, and so sought to have her husband enjoined from selling it. The court issued an interim order granting the requested relief. The defendant disregarded the court order, continued his efforts to sell the home, and threatened to kill Mrs. Lesia if she kept interfering.  To justify his rejection of the court order, the defendant claimed that he was not married to Mrs. Lesia, and that she had no right to file any applications against him. The court upheld Mrs. Lesia’s right to seek judicial intervention and sentenced the defendant to 30 days in jail for willfully disobeying the court’s order.  



Petlane v. Petlane High Court of Lesotho (1999)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support.  First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.



Sir Domtinet Bolngar v. Madam Nalem Louise Supreme Court of Chad (2005)

Divorce and dissolution of marriage, Property and inheritance rights

Sir Domtinet Bolngar brought a divorce claim to the civil tribunal of N’jamena on the basis of the prolonged rupture of their joint life and adultery committed by his wife. The Court pronounced a shared fault divorce and ordered an equal split of the couple’s joint goods. The Court of Appeal of N’jamena partially reversed the court’s decision and held that the divorce was exclusively caused by Sir Domtinet Bolngar‘s fault since the adultery of Madam Nalem Louise was never proven. The Court also awarded 3 million in damages to Madam Nalem Louise. Sir Domtinet Bolngar appealed the decision claiming he caught his wife red-handed at 5 am and that judges fail to assess the prejudice that he suffered. However the judges of the Supreme Court held that a simple narration of the facts did not constitute sufficient proof to charge Madam Nalem Louise with adultery, and therefore charged Sir Domtinet Bolngar with the court fees.



Quartson v. Quartson Superior Court of Judicature (2012)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Ms. Quartson filed for divorce, seeking that Mr. Quartson vacate the home they shared during the marriage. Mr. Quartson solely funded the construction of the house, but Ms. Quartson was the sole supervisor of the home’s construction, ensuring that it was built satisfactorily and taking care of their three children while he was away working as a seafarer. Based on these facts, the Superior Court overturned a trial court decision granting the home to Mr. Quartson, instead holding that because Ms. Quartson ran the household and supervised its construction while her husband was away, she should be entitled to a share of the home’s value. Although there may be circumstances that demonstrate clear evidence that a spouse is not entitled to the property, the Court also held that such circumstances did not exist in the present case. The Court found that Ms. Quartson had interest in the property, and granted her the home.



Amponsah v. Nyamaah Superior Court of Judicature (2009)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”



Esseku v. Inkoom Superior Court of Judicature (2012)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.



Stack v. Dowden [2007] UKHL 17 House of Lords (2007)

Property and inheritance rights

The parties began a relationship and the defendant bought a house in her sole name in which the parties lived together as man and wife and had four children. The defendant, who throughout their time together earned more money than the claimant, and sometimes almost twice as much, made all the payments due under the mortgage and paid the household bills. The parties then separated and the claimant left the property while the defendant remained there with the children. The claimant successfully applied to the judge for, inter alia, an order for sale of the property and an equal division of the proceeds. In this case it was held that where a domestic property is conveyed into the joint names of cohabitants without any declaration of trust there is an assumption that interest is equal. To prove interest is not equal, it must be proved that the parties held a common intention that their beneficial interests be different from their legal interests; to discern the parties' common intention the court should look at the parties' whole course of conduct in relation to the property, including more stereotypically feminine input such as redecoration, contributions to household expenses, etc and not just the initial contributions to purchase price, thus allowing some women more opportunity to claim an interest in their family home.



Attorney General v. Titselo Dzadze Ndzimandze (Nee Hlophe) and Others Supreme Court of Swaziland (2014)

Property and inheritance rights

The Attorney General appealed the High Court’s ruling that section 2(3) of the Intestate Succession Act is unconstitutional. Under section 2 (3) of the Intestate Succession Act of 1953, a surviving wife is limited to a child’s share or E1200 (equivalent to U.S. $109.37), whichever is greater, of the estate. In contrast, section 34 (1) of the Constitution, entitles a surviving spouse to a “reasonable provision” of the estate, which could exceed Intestate Succession Act’s limitation. The Supreme Court upheld the High Court’s ruling, finding that the Act was overtaken by the Constitution in 2005. The Supreme Court noted that section 34 (1) of the Constitution was deliberately drafted to be gender neutral to ensure that husbands and wives were afforded the same rights and protections to remedy gender-specific limitations like those present in the Intestate Success Act.



Attorney General v. Aphane Supreme Court of Swaziland (2010)

Gender discrimination, Property and inheritance rights

Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name. Section 16(3) of the Deeds Registry Act only permitted land to be registered by the husband and wife if the wife used her husband’s name; otherwise, the Act permits the land to be registered in the name of the husband only. Because the Section 16(3) of the Deeds Registry Act only affected the rights of wives and not husbands, the Supreme Court held that is invalid as it amounts to unfair discrimination and a violation of Section 20 and 28 of the Constitution.



Phiri v. Zulu High Court of Zambia (2012)

Divorce and dissolution of marriage, Property and inheritance rights

After fifty-four years of marriage, Mr. Phiri divorced Ms. Zulu in 2006. She was the mother of his nine children, and they shared a matrimonial home on a farm. Throughout the course of the marriage, Mr. Phiri and Ms. Zulu acquired real property, comprising the farm, other residential houses, and a bar, as well as several vehicles. However, during the divorce proceedings Mr. Phiri sold many of the houses and gave two of the properties to his children as gifts. He kept the proceeds of the sales for himself. The local court of first instance ordered Mr. Phiri to surrender one of the houses, a shop, a tavern and a sewing machine to Ms. Zulu. Unhappy with the outcome, Mr. Phiri appealed to the Subordinate Court, which heard the matter de novo. The Subordinate Court came to the same conclusions as the local court, although it ordered Mr. Phiri to surrender an additional sewing machine and K 6,000,000, as compensation for the property sold during the divorce proceedings, although no valuation of the latter had taken place. Ms. Zulu appealed to the High Court, among other grounds, on the basis that Subordinate Court should have also taken into account her contribution to the marital home (the farm) and that an assessment of the sold properties (or monies from the sale thereof) should have occurred. The High Court held that because the farm was acquired and maintained through the joint efforts of the husband and wife, Ms. Zulu had acquired a beneficial interest in the farm. Accordingly, the High Court ordered a valuation of the farm and directed Mr. Phiri to pay with one-third of the value to Ms. Zulu as a lump sum. Moreover, reasoning that the K 6,000,000 payment, related to the marital property sold during the divorce proceedings, was awarded without any basis whatsoever, the High Court further ordered a valuation of such property, with Ms. Zulu to receive one half of the assessed value.



Mukinga v. Fuller and Others Supreme Court for Zambia (2008)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.



Cole, et al. v. Dixon Supreme Court of Liberia (1938)

Gender discrimination, Property and inheritance rights

This case established that a wife’s dower is not an asset of her husband’s estate. After Mr. Dixon died intestate, his widow claimed that she held title to real property that had been conveyed to her as a deed of gift from her husband. The executor, appointed by the county, argued that the property was an asset of the estate because the right of dower accrues only after the death of the husband. The court disagreed, holding that “[the] inchoate right of dower is so vested in the wife as against the husband immediately on the marriage that no conveyance or act of the husband can deprive her of it,” including any creditors’ claims against the husband.



Williams v. Wynn Supreme Court of Liberia (1914)

Gender discrimination, Property and inheritance rights

This case established a precedent for property rights of a widow when her husband dies intestate. On appeal, the Supreme Court excluded from probate ten acres of land to which Ms. Williams claimed title. Ms. Williams’ husband died intestate and the executor of his estate, appointed by the Probate Court, included all real and personal property from the marriage in determining the assets of the estate. Ms. Williams claimed that she held title to ten acres of property that her husband had purchased through a third party, with title vesting in the wife. The executor argued, and the trial court held, that all property acquired through the husband could be made liable for his debts. The trial court relied upon the Constitution of Liberia, which states “The property of which a woman may be possessed at the time of her marriage and also that of which she may afterwards become possessed, otherwise than by her husband shall not be held responsible for his debts.” The court reasoned that this clause implies that property acquired through her husband could be held liable for his debts. The Supreme Court disagreed, holding that if a husband acquires property in the name of a third party, who becomes the medium through which title vests in the wife, the wife has an absolute right in that property and is not liable for the claims of the husband’s creditors. The court failed to apply this holding to personal property of the marriage, however, stating that instead personal property procured and owned by the deceased for the common use of the household is an asset of the estate.



Dlyon v. Lambert, et al. Supreme Court of Liberia (1884)

Gender discrimination, Property and inheritance rights

This early case established the precedent that a married woman may own and convey property independent of her husband. On appeal, the Supreme Court reversed the lower court’s decision denying ownership of a half-acre of land. Ms. Dlyon bought the property from a sheriff’s auction after it was repossessed for the payment of the owner’s debts. The Lamberts argued both that the previous possessor of the land never gained title of the property because he failed to obtain a fee simple deed so could not be used to pay his debts, and that even if he did have title, a married woman could not purchase land. On the first point, the court held that while the previous possessor did not have perfect title to the land, it could still be reached by creditors. On the second point, the court unambiguously declared that Ms. Dlyon had the right to purchase the property: “Under the Constitution, a femme couverte [married woman] may convey property she is possessed of otherwise than through her husband and this fact admits the inference that she may also bargain and buy property independent of her husband.”



Shalem v. Twenco Ltd Supreme Court of Israel (2006)

Property and inheritance rights

The appellant wife sought a declaration that under the joint ownership rule, she owned half the rights in a residential apartment that was registered in her husband’s name only, and her interest in the apartment was protected against attachment by her husband’s creditors. The court held that date spouses satisfy conditions of the joint ownership rule (sound relationship, united efforts) is the relevant date for “purely family assets” like the residential apartment in question. But not until a “critical date” in the marriage, or when the marriage faces a real danger to its continuation because of a serious crisis between the spouses, does joint ownership of other rights and liabilities crystalize. Here, because the appellant’s marriage had not reached such a “critical date,” her interest in the apartment was protected against attachment.



Midwa v. Midwa Court of Appeal of Kenya at Nairobi (2000)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.



Mtefu v. Mtefu High Court of Tanzania (1995)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.



Mtawa v. Risasi High Court of Tanzania (2001)

Property and inheritance rights

The appellant had lived with the deceased as husband and wife for nine years and given birth to two of his children. At his death, she asked that the estate not be distributed in accordance with Islamic law, which would have prevented her from receiving a share of the estate. The brother of the deceased challenged this, contending that she was a concubine who had no right to a share of the estate she had contributed nothing to amassing. The trial court registered a decision in favor of the appellant. It found that her relationship was the deceased fell under the presumption of marriage, and accordingly awarded her the house until either her death or marriage to another man. The brother appealed this decision and the District Court reversed the ruling of the trial court. The High Court found that the appellant and the deceased had achieved the status of a customary marriage. It also ruled that the deceased’s actions showed that he did not profess the Islamic faith and that Islamic law should thus not apply. It registered a decision that the appellant, through her contribution to the welfare of the household and family, was entitled to a share of the estate. The appellant received a half share of the house, while the other half was awarded to her children.



Kalulu v. Mahirima High Court of Tanzania (2011)

Gender discrimination, Property and inheritance rights

The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.



Mohamed v. Seifu Court of Appeal of Tanzania (1983)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.



In Re Estate of Lerionka Ole Ntutu (Deceased) High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.



Mensah v. Mensah Supreme Court of Ghana (2011)

Divorce and dissolution of marriage, International law, Property and inheritance rights

The petitioner filed for divorce and sought an equal share of assets acquired during the marriage.  At the time of marriage, neither party owned any property.  During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department.  The plaintiff also advised the respondent on property investments.  The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets.  The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets.  The Supreme Court affirmed.  Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets.  Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992."  Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property.  To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.



Metro N. Owners, LLC v. Thorpe Civil Court of the City of New York (2008)

Domestic and intimate partner violence, Property and inheritance rights

Ms. Thorpe was a victim of domestic violence.  Her landlord sought to evict her from her apartment, alleging nuisance in violation of the lease.  Ms. Thrope was the only person on the lease.  Her landlord’s nuisance claim was based on a fight that had occurred between Ms. Thorpe and her husband.  Ms. Thorpe moved for summary judgment based on the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”).  Under VAWA 2005, “an incident of domestic violence will not be construed to violate a public-housing or government-assisted tenancy and shall not be good cause to terminate a public-housing or government-assisted tenancy if the tenant is the victim or threatened victim of domestic violence.”  Ms. Thorpe argued that because her landlord’s allegations of nuisance were based solely on acts of domestic violence committed against her, he could not terminate her government-assisted tenancy.  To prove that she was a victim of domestic violence, Ms. Thorpe provided three complaint reports that she had filed with the New York Police Department, along with a protective order she obtained against her husband from the New York City Criminal Court.  The court granted Ms. Thorpe’s motion for summary judgment because she was a victim of domestic violence, and as such, VAWA 2005 prohibited her landlord from terminating her lease.  The court reasoned that “VAWA’s goal is to prevent a landlord from penalizing a tenant for being a victim of domestic violence,” as Ms. Thorpe was here.



J.Y. Interpretation No.410 Supreme Court of Taiwan (1996)

Gender discrimination, Property and inheritance rights

A Supreme Court precedent from 1966 held that property obtained by a wife during the continuance of a marriage, but which cannot be proved separate property or contributed property, belongs to the husband.  The amendment of the Civil Code in 1985 under the authority of Article 7 of the Constitution emphasizes gender equity and invalidates this Supreme Court precedent.



Ephrahim v. Pastory and Kaizingele High Court of Tanzania (1990)

Gender discrimination, Property and inheritance rights

The respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to a man who was not a member of her clan.  The next day, the appellant, Mr. Ephrahim, filed suit seeking a declaration that the sale of land by Ms. Pastory was void under the customary law that a woman has no power to sell clan land. The Court held that the customary law regarding women's property rights discriminated on the ground of sex in violation of CEDAW, the African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania Constitution.



Nkabane v. Nkabane High Court of Lesotho (1987)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman.   The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.



Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.  



2004 (Ju) No. 1968 Supreme Court of Japan (2006)

Harmful traditional practices, Property and inheritance rights

Two female members of a certain local community which have collective property rights to a common land (called a "common" or a "hamlet") petitioned the court to decide the unconstitutionality of a traditional practice which determined membership and property rights within the community.  The court held that this custom which excludes female descendants who married outside of the community, is "contrary to public order and therefore null and void" under Article 90 of the Civil Code.  The court held that "the male descendant requirement discriminates against female descendants only because they are females" and it is unreasonable and against the constitutional principle of "essential gender equality."



Andrew Manunzyu Musyoka (Deceased) High Court of Kenya at Machakos (2005)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married.  The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act.  It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR. 



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



International Case Law

Comunidad Indígena Xákmok Kásek v. Paraguay Inter-American Court of Human Rights (2010)

Property and inheritance rights

The Indigenous Community Xákmok Kásek and its members sued Paraguay because of its inability to recover certain ancestral property. The Community claimed that this lack of access to property and possession of its territory, in addition to threatening the survival of the Community, resulted in nutritional, medical and health vulnerability to its members, causing, among other things, the death of pregnant women, children, and the elderly. The court found Paraguay in violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (personal integrity), 8.1 (Trial), 19 (Rights of the Child), 21 (Right to Property) and 25 (Judicial Protection) of the Convention, in relation to the obligations established in Articles 1.1 (Obligation to Respect Rights) and 2 (duty to adopt domestic law). The court ordered Paraguay to engage in a series of reparation measures, including returning land to the Community, damages and undertakings not to repeat such conduct and to assist the Community with rehabilitation. Among other measures ordered by the court, Paraguay must provide immediate “special care to women who are pregnant, both before birth and during the first months thereafter, and the newborn.”



The Case of Serife Yigit v. Turkey European Court of Human Rights (2010)

Property and inheritance rights

The applicant, ?erife Yi?it, is a Turkish national who was born in 1954 and lives in Gaziantep, Turkey. In 1976, she married Ömer Koç (Ö.K.) in a religious ceremony (imam nikah?). Ö.K. died on 10 September 2002. The youngest of their six children, Emine, was born in 1990. On 11 September 2003 ?erife Yi?it brought an action, in her own name and that of Emine, seeking to have her marriage with Ö.K. recognised and to have Emine entered in the civil register as his daughter. The District Court allowed the second request but rejected the request concerning the marriage. The applicant further applied to the retirement pension fund (Ba?-Kur) to have Ö.K.’s retirement pension and health-insurance benefits transferred to her and her daughter. The benefits were granted to Emine but not to her mother, on the ground that her marriage to Ö.K. had not been legally recognized. The applicant appealed unsuccessfully against that decision. Relying on Article 8 of the Convention (right to respect for family life), the applicant complained about the Turkish courts’ refusal to transfer her deceased partner’s social-security entitlements to her. In its judgment of 20 January 2009 the Chamber examining the case found that it was not unreasonable for special protection to be afforded only to civil marriages in Turkey, pointing out that marriage remained an institution widely recognized as conferring a particular status on those who entered into it. It considered that the difference in treatment between married and unmarried couples with regard to survivors’ benefits was aimed at protecting the traditional family based on the bonds of marriage and was therefore legitimate and justified. Accordingly, the Chamber held by four votes to three that there had been no violation of Article 8. On 14 September 2009 the case was referred to the Grand Chamber at the applicant’s request.



Case of the Yakye Axa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2005)

Property and inheritance rights

The Inter-American Commission on Human Rights alleged that, by not respecting ancestral property rights, the Government of Paraguay threatened the Yakye Axa Indigenous Community’s access to food, water and health care, and survival in violation of Articles 4 (right to life), 8 (right to fair trial), 21 (right to property) and 25 (judicial protection) of the American Convention on Human Rights. The court noted several specific examples of dangers faced by the women of the Community, including instances in which a woman was threatened by a man wielding a shotgun and another in which a woman was sexually exploited by State workers. The court noted that Paraguay was obligated to take into account the economic and social characteristics, special vulnerability, and customary laws, values and customs of indigenous peoples in order to effectively protect them, and found that Paraguay’s delay in recognizing the Community’s leadership, legal status and claims to land violated the Community’s rights to judicial protection, a fair trial, property, and ultimately a decent life. The court also found that the Community had a right to be granted legal status in order to take advantage of its members’ full rights as a people, and that Paraguay’s ongoing refusal to recognize that status was a violation of this right. As such, the court ordered that Paraguay provide the Community – “especially children, the elderly and pregnant women” -- with reparations, including compensation, food and water, sanitation, access to health care, and rightful title to their traditional territory.



Brachner v. Pensionsversicherungsanstalt European Court of Justice (2011)

Gender discrimination, Property and inheritance rights

Ms. Brachner brought an action against the Pensionsversicherungsanstalt arguing that the implementation of an adjustment factor for pensions, established in 2008, resulted in indirect discrimination against women who were disproportionately less likely to qualify for an exceptional pension increase. Upon referral from the Austrian Supreme Court, the European Court of Justice held that (1) an annual pension adjustment scheme comes within the scope of the EU Directive guaranteeing equal treatment of men and women in matters of social security, (2) a national arrangement that excludes from an exceptional pension increase a significantly higher percentage of female pensioners would violate the Directive, and (3) the disadvantage cannot be justified by the fact that women receive their pension at an earlier age or that they receive their pension over a longer period.



Kell v. Canada CEDAW Committee (2012)

Gender discrimination, Property and inheritance rights

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K losing ownership of the property, in violation of Articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with Article 1. However, it found that Canada had not violated Articles 14(2)(h) or 15(4), as there was no evidence K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K and provide her with appropriate housing. It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims of domestic violence have effective access to justice.



E.S. and Others v. Slovakia European Court of Human Rights (2009)

Domestic and intimate partner violence, Property and inheritance rights

E.S.’s ex-husband S was convicted of ill-treatment, violence and sexual abuse against E.S. and their daughters and sentenced to four years' imprisonment. E.S. requested an interim measure ordering S to move out of the council flat of which they were joint tenants. The domestic courts dismissed her request, finding it lack the power to restrict S’ right to use the property under the relevant legislation. The appellate courts upheld that decision noting that E.S. would be entitled to bring proceedings to terminate the joint tenancy after a final divorce decision and, in the meantime, she could apply for an order refraining S from inappropriate behavior. The Constitutional Court subsequently held that E.S.'s rights were not violated as she had not applied for such an order. However, it held that the lower courts had failed to take appropriate action to protect E.S.'s children from ill-treatment. It did not award compensation as it considered it provide appropriate just satisfaction by a finding of a violation. Following the advent of new legislation, E.S. made further applications and two orders were granted: one preventing S from entering the flat; the other awarding her exclusive tenancy. In the meantime, E.S. had had to move away from their home, family and friends and her children had had to change school. The ECtHR concluded that Slovakia had failed to fulfill its obligation to protect all of the applicants from ill-treatment, in violation of Articles 3 and 8. The alternative measure proposed by Slovakia, i.e. an order restraining S from inappropriate behavior, would not have provided the applicants with adequate protection against S and therefore did not amount to an effective domestic remedy. The ECtHR ordered the Slovak Republic to pay non-pecuniary damages of EUR 8,000.



Kalucza v. Hungary European Court of Human Rights (2012)

Domestic and intimate partner violence, Property and inheritance rights

K’s partner Gy.B. acquired ownership of K’s ex-husband share of their jointly owned flat and had it registered as his place of residence. K sought to have him evicted when their relationship ended, lodged numerous criminal complaints for rape, assault and harassment but Gy.B.was acquitted on four occasions and was convicted on only two occasions, released on parole and ordered to pay a fine. On three occasions K herself was found guilty of disorderly conduct, grievous bodily harm and assault. She also faced a trespassing charge brought by Gy.B. because she had the flat's locks changed. During the criminal proceedings, K made two requests for a restraining order against Gy.B. and both were dismissed on basis that she was also responsible for the bad relationship. Civil proceedings concerning ownership of the flat were also suspended while Gy.B.’s violent behavior against her continued and a medical report was drawn up recording her injuries with an expected healing time of eight to ten days. The ECtHR found that the Hungarian authorities had not taken sufficient measures for her effective protection, in violation of Article 8. The Court noted that it had taken the authorities too long - more than one-and-half years - to decide on K’s first restraining order request, undermining the reason behind such a measure which was to provide immediate protection to victims of violence. Sufficient reasons for dismissing the restraining order requests were not given, the courts relying simply on the fact that both parties were involved in the assaults, ruling out the possibility of a victim having acted in legitimate self-defense in the event of a mutual assault. The Court commented that restraining orders could have been issued against both parties and ordered Hungary to pay K non-pecuniary damages.



Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)

Gender discrimination, Property and inheritance rights

The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.



Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.



Ato del Avellanal v. Peru Human Rights Committee (1988)

Gender discrimination, Property and inheritance rights

In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.



Reports

Hidden in the Mealie Meal (2007)

Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

Human Rights Watch Report on the Zambian government's failure to meet its international obligations to combat violence and discrimination against women. The report documents abuses that obstruct women's ability to start and adhere to HIV treatment regimens, including violence against women and insecure property rights (2007).



Women's control over economic resources and access to financial resources, including microfinance (2009)

Property and inheritance rights

UN Women 2009 World Survey on the Role of Women in Development (2009).