III. Analyzing the Formal Legal Structure
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? What is the nature and scope of those rights? (These could have different names in different legal systems such as ownership in fee simple, freehold, leasehold, right of emphyteusis, contract, etc the key feature is that some rights to the property are in the hands of individuals or households rather than the state or communities)
- Does the law recognize customary rights to land and property?
- Does the law recognize collective rights to land?
- Does the law recognize women’s rights to land and property?
- What categories of land does the law recognize? (Public, private, customary, church, communal, tribal, forests, pastures, 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
- Does the law limit the category of land women can own (vs. men)? For example, there may be 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 (or 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? Are the boundaries of who is covered by each law clear?
- TIP: 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.
- 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.)?
- *If yes, is there a limit to the number of wives a husband can have? Are there any other limitations?
- *Are there provisions regarding marital property, or inheritance when there is 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 documents are required? Does this vary based on of the type of marriage? Does the failure of documentation limit of affect the right to marital property?
- Does the law permit common ownership (co-ownership) of land between individuals- married or not? (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 provide for joint property rights that arise because of the marriage relationship? Do married couples select which regime they would like and/or is ther a default regime that applies? (Often marital property regimes are a combination of separate property, joint or common property, or limited joint or common property).
- What is the nature and scope of the property rights
- Which property is presumed to be jointly owned by spouses or part of the marital community? Which property is considered separate (often this is gifted, inherited or property owned by one spouse prior to the marriage)
- 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?)
- TIP: Legal language can be important here. In some jurisdictions terms like “joint ownership” or “co-ownership” can have a different legal meaning, and very often it has to do with the right of survivorship. No matter the name used in the law, the key thing to distinguish in marital property regimes is the nature of the joint right between spouses and the right of survivorship. For example:
- A co-ownership scenario without the right of survivorship looks like this: A and B are married and they are co-owners of a parcel. This means that A owns 50% and B owns 50%. If A dies, then A’s heirs inherit A’s 50% share in the parcel, and B continues to own her 50% share
- A joint ownership scenario with the right of survivorship looks like this: A and B are married and joint owners of the marital property which is a parcel of land. This means that both A and B jointly own 100% of the parcel. If A dies, then B retains 100% ownership of the parcel. When B dies, the heirs of B inherit the parcel.
- When do the marital rights begin? And how/when are marital rights terminated? (At the time of death, divorce, partition, etc.?)
- Does the law provide for 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 right to inherit all or part of the separate property if the deceased spouse dies without a will?
- If the law permits or requires joint property between spouses, are the rights to land of both spouses equal
- TIP: Sometimes, the law may provide for joint ownership in name but then limit that joint ownership in some way, for example, giving the surviving spouse a right to marital property until and unless he/she remarries. In these cases the property right of the surviving spouse is severely curtailed by this requirement.
- Does the law designate who manages marital property?
- TIP: In Islamic contexts there can be rules around property between spouses that are established by contract (as part of the marriage contract); you can check on whether this is covered by law and alsowhether it is a common practice.
- When it comes to joint property rights between spouses, does the law consider consensual unions in the same way it does legally married persons? (Consensual unions may also be called de facto unions, common law marriage, informal marriages, etc. The key feature is that the couple is living as if married, and the law determines that if they meet certain criteria those relationships will be covered by marital property law. For example, the law may provide that a couple who live together for seven years and have children will be treated as if they are legally married, even if they have not solemnized the marriage).
- If so, when does the right to joint property in a consensual union arise? Does the relationship have to be solemnized in some way for the rights to take effect?
- Does the law require mandatory joint documentation and/or joint registration for marital property held jointly between spouses?
- Does the state/national government provide any incentives for titling and registering land in the names of both spouses if the property is owned jointly between spouses? Or in the name of the woman only
- What documents are required to title and register land jointly?
- What documents are required to prove eligibility joint ownership or separate ownership of property in the context of land titling and registration?
- In the context of documentation and registration of land rights, are there legal rules for how to treat polygamy, or informal marriages and jointly owned land?
- How does the law define divorce? Is it permitted by law? Are there limited reasons divorce is allowed? (Adultery or abandonment, for example?
- What does the law say about division of property upon divorce?
- What does the division depend on? Is it linked to marital property regimes?
- 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?
- What does the law say about abandonment or disappearances of spouses and property rights?
- What does the law say about out migration and property rights?
- Under what conditions can land be taken or compulsorily acquired by the state?
- What does the law say about compensation for compulsory acquisition and/or the state taking land?
- What rules or principles are used to determine the amount of compensation, and what form the compensation takes (e/g/ cash payment, resettlement)?
- How does the law define who is eligible for compensation? Is it based on land rights or on benefits or interest in the land or some other measurement?
- TIP: if it is based on land ownership, the question may arise of how ownership is proven if the land rights exist in an area where rights are not documented or registered. If ownership is based on customary rules, it can inadvertently exclude women who may not have customary ownership rights, but who may stand to lose the benefit of using the land if the land is taken.
- If it is a cash payment, to whom is the payment made? And how is it made? If it is intended to assist the whole household are there any legal protections to make sure that the cash cannot be taken by one family member at the expense of all others?
- 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?
- Is the forum the same for inheritance and marriage issues?
- 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?
- 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.
Collective Rights to Land in formal laws
- Are collective rights to land recognized by law?
- For which resource or what kind of land? (E.g. are collective rights recognized on agricultural land, forest land, grazing land, mountains, etc.?)
- If so, what is the nature and scope of the collective rights in formal law? Does the state retain any rights or authority on the collective rights? Does the law vest authority in leaders or representative group? Does the formal law determine how the collective group shoud be formed and managed? Must the group be registered or otherwise prove its legitimacy to have the collective rights? Does the law detemine membership in a group or put any restrictions on how the groups can be formed?
- TIP: Women amay not be members of a landholding group under customary rules.
- Are the tenure and governance rules of the collective land holding group codified or otherwise written? Or is there a law that provides for how collective lands should be governed?
- If the rules are codified, review them for the following questions which may be applicable in a given context. Generally this analysis should be done for each different resource/type of land as the law may treat them each in different ways. If the tenure and governance rules are not codified this information should be gathered through research into the customary rules.
- Who determines what the scope and nature of the collective rights are? Are they pre-determined or left to the discretion of certain individuals such as elders or leaders? Are they subject to legal review?
- What are the different rights to the land/resource? And are they distinguished by gender (e.g. men have grazing rights, women have residence rights?) Are they overlapping? (For example, right to collect firewood, right to collect herbs, right to cut trees, etc.)
- Do the rules for collective governance vary depending on the community? Do they apply to all communities? Whose rules have been codified?
- Do the rules vary depending on the land/resource?
- Who (which institution, individuals, groups of people?) has authority to govern land held under collective tenure? For which resource?
- Does the formal law require certain conditions in the rules governing the collective land/resource? For example, does the law mandate that any governance rules must have a quota for women's participation that are not negotiable?
- Does the law provide for how the people who govern collective land are chosen? Do they have a term? Are their decisions subject to review? If so, by whom and under what conditions?
- What is the role of the governance group/committee in the law? What are their functions? Are there mechanisms to ensure good governance?
- Does the law require the the governance of collective lands is formalized in any way, such as through incorporation, registration, or administrative recognition of the formal group?
- Does the law determine or otherwise influence who has rights to the collectively held lands?
- Does the law determine or otherwise influence who is a member of the landholding group?
- Does the law cover how the rules governing collectively held lnads interact with laws governing marital property (i.e. do laws on marital property and inheritance apply?)
- Are there circumstances within the formal law covering collectively held lands or that codify customary laws on collective land in which women lose their rights to collective land?
- If so, what are these circumstances (divorce, death of spouse, abandonment, etc.)?
- Which forums have statutory authority to hear property rights cases involving collective land?
- Are these the same for cases of division of marital property for those married under customary rules? Are they the same for private land rights?
- If the law requires the use of traditional or customary dispute resolution actors for disputes on collective lands, is there a law that governs the processes, administration, and decision-making of the traditional or customary actors?
- 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?
- Who is responsible for enforcing traditional court decisions?
- Are there legal restrictions on women with regarding accessing 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, to whom are appeals filed and under what conditions may they be filed?
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 state land is distributed and 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 or other transfers or transactions?
- Can the land be physically partitioned?
- What does the law say about the land rights of household members who leave the household after distribution? (e.g. for divorce, married out, etc.)