II. Introduction to Women's Land Rights
This page will highlight a few areas for analysis.
To jump to one of the sections on this page use the below links:
Introduction to Women's Land Rights
Rights to land can be broadly categorized as public or private, collective 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, resilient, well protected, and are both legally and socially legitimate. It is useful to think of security of land rights in terms of a continuum moving between weak/insecure to strong/secure, which can shift at different moments in time or when different events take place. 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
- 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 statutory rights may conflict with customary law or practices
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 state that spouses jointly own marital property including land, except in the case of inheritance or gifts to one of the spouses. However, marriage may be legally defined in ways that preclude certain kinds of marriages, even if they are commonly practiced, such as polygamous, informal, customary, or religious marriages; the rules around joint ownership may not apply to those marriages that do not meet the legal criteria. Also, in some legal frameworks, when the law grants equal inheritance rights to daughters and sons but excludes certain kinds of land it may inadvertently limit women’s rights to inherit; for instance, if the inheritance laws excludes ancestral land, and most land is ancestral and the culture is patrilineal (where rights transfer along the male bloodline) then women will not in practice inherit land rights from their fathers as compared to their brothers because the most common kind of inherited land is excluded.
- Understanding how other seemingly unrelated rules can impact land rights for women
There are many other laws - outside of those directly related to land and preoperty rights - that can influence women's legal rights to land. Some common examples include: rules governing 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 minors are not eligible to own land; men are legally presumed the head of the household and only the head of the household has the right to manage property; polygamy is outlawed but is widely practiced and marital property rights only apply to legally married persons; proving a right to land requires a document that only men have access to, such as a tax receipt or identity card; or where statutory law provides for equality between men and women and also recognizes customary law as a source of law, but, if there a conflict between the two legal systems, customary law will apply.
Similarly, in customary systems, 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, and therefore not entitled to marital property or inheritance from her father.
- 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 their rights 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). Even when a woman can get to the appropriate forum there may be reasons why she will choose not to pursue her rights because she may lose important social relationships with a husband, father, brother or other family or community member on whom she depends.
- Understanding that a woman's security of rights to land can change when a her marital status changes
In some contexts, customs allow women to use their husbands’ or fathers’ land but not to own or have other rights to the land. Provided that they remain married to their husbands or continue to live with their fathers, women’s rights to land are relatively secure. However, if a husband or father dies, or if a husband takes a new wife, or abandons his wife, or if there is war, displacement, or a natural disaster, women can be left without rights to use that land.
In some customary systems, the security of a woman’s rights to land may depend on whether she bore a son, whether she has children, or whether she is considered marriageable, young or old.
- Identifying how gendered social roles may impact women’s ability to exercise their rights
In many cultures, decision-makers are men, men are the face of the family, and land related matters are considered men’s responsibility, while women are responsible for other matters.
This can create a situation where women are informed of their land rights, or, may not participate in programs that seek to map or document their rights, or may not have their rights registered when men’s rights are. Unpacking these issues can require deep analysis, and asking nuanced questions. For example, if a focus of analysis is ownership of land, women and men might agree that men own land and women do not. But often, women have overlapping rights on that same land, for example, she might have a life time right to use the land of her husband. Neither she nor her husband will regard it as ownership but it is still a right that can be strengthened and protected against threats.