Women's Land Tenure Framework for Analysis: Land Rights

Renee Giovarelli and Elisa Scalise · Sep 22, 2016

III. Analyzing the Formal Legal Structure

Page Contents

This page will highlight a few areas for analysis.

To jump to one of the sections on this page use the below links:

Broad Principles of Land Rights

Note: The below information may be found in a country's constitution.

  • What rights to land does the State retain? (State owns all land; State owns natural resources but not urban or agricultural land; State has the right to take private land for public purpose, etc.)
  • Does the law recognize private property rights?
  • Does the law recognize customary rights to property?
  • Does the law recognize women’s rights to property?
  • What categories of land does the law recognize?  (Public, private, customary, church, communal, tribal, etc.)?
  • Does the law recognize the equal rights of men and women generally?
  • Does the law make it illegal to discriminate based on a person's gender?
  • If the law recognizes custom as a source of law, how does it handle conflicts between the statutory law and customs, particularly when it comes to land rights for women?  Which law is dispositive?  

Individual/Household Rights to Land

Legitimacy

 

  • Does the law limit the category of land women can own (vs. men)? For example, there are often restrictions on women owning ancestral land.
  • Does a woman’s marital status have an impact on her right to own land?
  • If yes, which land?  In what way?
  • Are there court cases that interpret the law on women’s land ownership?
  • Is there more than one personal law regime (family law) that applies to different people?
  • Is there civil, religious, and/or codified customary law?
  • If yes, who decides which law is applied? At what point?
  • If yes, an analysis of each of these laws will be required, and you will need to consider each of the questions in this section for each law.

Marital Status

 

  • What types of marriages are legal (customary, religious, civil, etc.)?
  • What is the legal age of marriage for boys? What is the legal age of marriage for girls?
  • Does the law recognize consensual unions/cohabitation/de facto marriages/presumption of marriage? 
  • If so, what property rights may arise from those relationships? Are they treated the same as a “marriage” by law?
  • *Is polygamy legal?
  • TIP: If the law does not state that polygamy is legal it may be presumed or interpreted by reference to the context. For example, if the law recognizes customary marriages as legitimate, and everyone knows that polygamy is permitted under customary law, then it can be said that polygamy is “legal” for customary marriages, noting that this may not mean that it is also legal for formal marriages
  • *If yes, is it legal under all personal laws or only certain laws (e.g. for Muslims or customary marriages, etc.)?
  • *Is there a limit to the number of wives a husband can have?  Are there any other limitations?
  • *Are there provisions regarding land for more than one wife? Is land referred to specifically?
  • *Are there provisions related to the children of more than one wife? If yes, how is land (or other property) divided between the children? Is land referred to specifically?
  • Does the law require that a marriage is documented? 
  • If yes, what is required? Does this vary based on of the type of marriage?

Shared Tenure

 

  • Does the law permit common ownership (co-ownership) of land between individuals?  (This may be in the law on property rights, land laws, or personal laws or elsewhere.) 
  • Does the law restrict who may be a common owner? Does the law restrict what category of land can be co-owned?
  • Does the law presume joint property rights for married couples? (Do married couples by law have joint property rights unless they contract out of their rights?)
  • If yes, is it compulsory or voluntary? Is there a way to opt out of it?
  • What is the nature and scope of the joint property rights that arise in marriage?  
  • Which property is not presumed to be jointly owned (often inherited or gifted property)?
  • Is there a right of survivorship for the spouse? (Does the living spouse have an automatic right to all of the jointly held property at the time of his/her spouse’s death?
  • How can those rights be terminated?
  • When are the rights terminated? (At the time of death, divorce, partition, etc.?)
  • Does the law presume separate property for married couples?
  • What is the nature and scope of the separate property in a marriage? Can it apply to all property?
  • If the law provides for separate property, will the income from that property be owned by the individual or by both spouses?
  • Does a spouse have the automatic (intestate) right to inherit all or part of the separate property?
  • If the law permits or requires joint property between spouses, are the rights to land of both spouses equal?
  • If the law provides for joint property, when does the property become joint property (marriage, divorce, death)?
  • Does the law designate who manages joint property?
  • When it comes to join property rights between spouses, does the law consider consensual unions in the same way it does legally married persons?
  • If so, when does the right to joint property in a consensual union arise?
  • Are they treated the same as relationships which is considered “marriage” by law?
  • Does the law require mandatory joint documentation and/or registration for marital property held jointly between spouses?
  • Does the state/national government provide any incentives for registering land in women's names?
  • What documents are required to register land jointly?
  • In the context of documentation of land rights, what are the rules around polygamy and co-owned land?

Vulnerability

 

  • Inheritance issues are covered here.
  • How does the law define divorce? Is it permitted by law? 
  • What does the law say about division of property upon divorce?
  • Do children from the marriage factor into the division of property?
  • Who decides the division of property in divorce? (e.g. families, courts, community elders, etc.)
  • Are there restrictions on division of property? Are there minimum size limits for land? Can land of a certain size be divided?
  • Are all categories of land treated similarly?
  • Does the law provide for division of property between spouses in the event of disappearance or abandonment?
  • What does the law say about abandonment?
  • What does the law say about out migration of husbands?
  • How is compensation determined? Who is compensation paid to?
  • Who has the right to compensation for the loss of rights?

Enforcement

 

  • What forums have statutory jurisdiction to hear property or land rights related cases? (e.g. formal courts, courts of special jurisdiction, traditional dispute resolution actors recognized for certain cases, etc.) Do those forums have female representation?
  • For division of property upon divorce, are there any requirements for getting into court? Are there any up-front payments?
  • If there are multiple legal systems that deal with marital property, what is the process for determining which law and adjudicative body applies?
  • Do women and men have the same right to decide which law or adjudicative body applies?
  • Are there barriers to accessing the formal system of adjudication? I.e. fees, assumption of literacy (does something need to be written), identification documents, etc.

Communal and/or Customary Rights to Land

Legitimacy

 

  • If so, what is the nature and scope of those rights?
  • If so, what is the nature and scope of those rights?
  • Are the communal/customary governance rules codified or otherwise written? 
  • By law, who determines what these rights are? Are they subject to legal review?
  • Who (which body?) has authority to govern land held under communal/customary tenure?
  • Are communal/customary land rights allocated to individuals or to members of the group? 
  • Who is responsible for the allocation of communal/customary land?  What criteria are used for allocation?  What are the terms of use for communal/customary land?
  • Which individuals have rights to the communally/customarily held land?
  • Is the right based on membership in a household, village, clan, tribe, group? 
  • How are those rights different for men and women? What is the nature and scope of rights for men and women who are members of or affiliated with the "group"?
  • Does the formal law recognize any rights for women within that customary group?
  • If so, what rights do women have to communal/customary land?
  • Do women have the right to own land, use land, control land, use land for specific purpose, use land at a specific time?

Vulnerability

 

  • Are there circumstances in which women lose their rights to communal/customary land?
  • If so, what are these circumstances (divorce, death of spouse, abandonment, etc.)?
  • Are the rules different for communal or customary land than they are for individual or household land?

Enforcement

 

  • Which forums have statutory authority to hear property rights cases involving communal or customary land?
  • Are these the same for cases of division of marital property for those married under customary rules?
  • Does the law recognize or require any pre-steps before taking a case to court (e.g. compulsory mediation, alternative dispute resolution, traditional courts, etc.)? 
  • If so, are the findings of those hearings used in the formal court?
  • Are women represented among those who reslove disputes?
  • Who is responsible for enforcing traditional court decisions?
  • Can women access the dispute resolution body on their own, or is there a required intermediary?
  • Is there any recourse to a higher authority/right to appeal?
  • If so, who?

State Distribution of Land

  • If the Government has a land distribution program, who is eligible for land?
  • Who is prioritized?
  • What documents are required?
  • Do both women and men have access to the documents required for eligibility?
  • Are both women and men’s names on the documents required for eligibility? 
  • Are women and men treated equally in the program?  If not, in what ways?
  • If land is distributed (or formalized) to households, by law, whose name must be listed on the title?
  • Whose name(s) has to be registered?
  • What are the rules for transfer of state land once it has been distributed to households?  Are there restrictions on sale, lease, or inheritance?
  • Can the land be partitioned?
  • What does the law say about household members who leave the household after distribution? (divorce, married out, etc.)