Property Ownership and Inheritance

• Pages: 136-138

Contenidos

• The Issue.
• Legal and Policy Considerations.
• Practice Examples.
• References.

Page 136

The Issue

In many developing countries, statutory and customary laws prevent women from owning, controlling, or inheriting property. Upon dissolution of a marriage or death of a spouse, women often lose control over all significant assets. Such exclusion from full property rights carries particularly harmful consequences for divorced or widowed women with HIV, who may be forced into unsanitary living conditions or may no longer be able to afford treatment. Women in this situation may also face difficulties in accessing other basic necessities such as food and shelter, which along with HIV infection can undermine their health even more dramatically. In some circumstances, divorced or widowed women who have no property or job prospects may have to resort to sex work to support themselves, increasing their risk of contracting HIV. If they are infected with HIV, the infection may be passed on to others. For married women, unequal property rights can increase their likelihood of HIV infection by weakening their bargaining position within the relationship, making it more difficult to negotiate safer sex.

Legal and Policy Considerations

International law generally prohibits discrimination against women, including discrimination in marriage and family relations. More specifically, the Declaration of Commitment on HIV/AIDS adopted by the U.N. General Assembly in 2001 required governments to enact and enforce legislation to eliminate discrimination in access to inheritance. However, national and local laws and customs do not necessarily reflect a similar commitment to equalizing women's property rights. Legislation explicitly prohibiting women from owning or inheriting land and property has become rare, although many countries lack gender sensitive legislation or a legislative framework that protects women's human rights. The effectiveness of antidiscriminatory inheritance legislation is often limited by numerous exceptions and inadequate enforcement.

In countries where adequate statutory provisions have been enacted to govern land, property, and inheritance, customary law-unwritten social norms that ostensibly reflect community values but which often reinforce gender bias-may still bar women from exercising their rights. In family matters, including the distribution of property after a death, customary law often prevails over more...