Women's Land Tenure Framework for Analysis: Land Rights

Renee Giovarelli and Elisa Scalise · Sep 22, 2016

II. Introduction to Women's Land Rights

Page Contents

This page will highlight a few areas for analysis.

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Introduction to Women's Land Rights

Rights to land can be broadly categorized as public or private, communal or individual. A plot of land may have overlapping rights. For example, state owned pasture land may have a private well on it, or land that is owned by an individual may be subject to a public easement which allows the public access over that land. There are no examples of absolute private ownership, as states always reserve some rights to land or impose obligations on land rights holders, often to protect broader social interests.  This framework looks at how to determine whether women, as well as men, have secure rights to the land they are using, and to determine whether and how women’s rights are weaker than the rights of men. Secure rights are clear, long-term, well protected, and are both legally and socially legitimate.

 

Land rights are more than just black and white, existent or non-existent, insecure or secure.  It is useful to think of the level of security of land rights in terms of a continuum moving from weak/insecure to strong/secure. What makes land rights more strong/secure varies from setting to setting. We define secure land rights for women as:

 

  • Legitimate (legally and socially recognized)
  • Able to withstand changes in their families and their communities
  • Long-term
  • Enforceable
  • Exercising them does not require consultation or approval beyond what is asked of men

This framework is looking specifically at women’s secure land rights (this is also referred to as "land tenure security." See the Glossary for a more complete definition of land tenure security).

Common Issues of Note

  • Understanding that land rights in customary law can change when a woman’s status changes

Legal rules, which on their face are not discriminatory, can be discriminatory in practice because of the specific customs of a country or area of a country.  For example, many laws presume that married couples jointly hold rights to land, except in the case of inheritance or gifts to one of the spouses. However, many women in rural areas are not legally married, although they are married under customary or religious rules, and the law does not, therefore, apply to them.  Also, in a patrilineal system, men, not women, inherit land, and inheritance is the main way land is transferred.  Women may have fewer or greater rights to land depending on which religion they practice or what customs have been formalized in the law.  For example, if polygamy is illegal for a specific religious group, subsequent wives in that religious group will not have the right to the land or house they share with their husband.

 

  • Understanding how other seemingly unrelated rules can impact land rights for women

Other legal rules that can influence women’s rights to land include: the legal age of marriage (underage girls do not fall under the presumption of joint ownership for married couples); women may be considered minors (because they are women, not because they are of minority age) under the law and therefore not eligible to own land; or law that provides for equality between men and women except where the formal law conflicts with customary law, which often does not treat women equally.

 

  • Uncovering structural impediments to enforcement of rights that exist in law

Even when women have legal rights to land under the law, if their names are not on land documents or are not registered, they may have difficulty enforcing their right to land because to do so would require making a claim in a court of law.  Women may not have access to dispute resolution bodies due to lack of funds, time, knowledge, or ability to travel, or if there are different courts (civil, religious, or traditional) one or more may be more favorable to women than the other(s).

 

  •  Understanding that land rights in customary law can change when a woman’s status changes

Customs, which may have at one time protected women, may no longer do so. Under customary law women may not be able to own land and only have rights to access land through their husband or father.  In such cases, women usually do not have a right to control the income from that land but rather work as laborers on their husbands' or fathers' land. Polygamy may cause first wives to lose a portion of their land. 

If land is held by a tribe or clan, women from outside the tribe or clan may have no rights to the land unless they are with their husbands, thus divorce, abandonment, and death can affect women’s rights to land. If dowry or brideprice was exchanged for the woman at the time of her marriage, she may be considered to have received her share of family wealth even though she may not have control over it.  A woman’s rights to land may depend on whether or not she has sons, whether or not she has children, or whether she is young or old.

 

  • Identifying how gendered social roles may impact women’s ability to exercise their rights

Under custom, decision-makers are usually men, and men are the face of the family.  Therefore women may not be informed of their rights, may not participate in mapping or identifying their rights, and may not have their rights documented or registered.  Women often have overlapping rights to land that are not obvious, for example, the right to gather wood or herbs.

Traditional dispute resolution bodies may favor men over women in terms of land rights because men traditionally have greater rights to land than women do. Thus, women may begin with a disadvantage because it is generally understood that land rights are the unique province of men rather than women despite legal or customary protections for women.