|December 29, 2010
Women claim equal share of family property
Malawi's Constitution states that women are entitled to "a fair disposition of property that is held jointly with a husband" when a marriage ends, the current law considers property to be held "jointly" only if they had made direct financial contributions to said property. However, things seem to be improving for married women in Malawi. The Women and Law in Southern Africa Research Trust (WLSA - Malawi) has taken the government to the Constitutional Court where they are challenging the current Marital Property Law, arguing that it discriminates against women. But the government is also fighting back, saying WLSA has failed to produce any identifiable women who have been affected by said law.
Senior Legal Advocate Thabo Chakaka Nyirenda, who is representing the Attorney General, is dismissive of the "hypothetical and imaginary" issues raised by WLSA.
According to WLSA-Malawi, many women in Malawi continue to be short-changed upon dissolution of marriage or death of a husband because they have never had a fair disposition of property. They add that there is a strong international trend regarding the equal division of a married couple's joint estate.
In numerous jurisdictions, including Austria, Canada, Croatia, Denmark, France, Germany, Greece, Italy, the Netherlands, New Zealand, Norway, Spain, Sweden and the United States, a marital-property approach reflecting an equalisation of marital assets upon marriage dissolution has been implemented in recognition of women's non-economic and indirect contributions to marital property, according to WLSA - Malawi. "We are looking at the woman holistically. Not only after the death her husband but her plight in marriage and after divorce," explained WLSA National Coordinator Seodi White.
WLSA-Malawi is requesting the Constitutional Court to declare section 17 of the Married Women Property Act invalid, or as an alternative, to declare that section 17 be interpreted in a manner that recognises women's contributions to marital property and guarantees that women receive half of the marital assets upon the end of a marriage. "This is because in Malawi property is rarely registered in women's names. Therefore they cannot prove a direct, economic contribution to its acquisition and maintenance," said White. "I don't think the new law will work. Our culture here is the major obstacle here. The fact that lobola (dowry) was paid gives the man's family power to do what they want," Mkandawire noted.
According to a research paper by Duncan McPherson titled: "Property Grabbing and Africa's Orphaned Generation: A Legal Analysis of the Implications of the HIV/AIDS Pandemic for Inheritance by Orphaned Children in Uganda, Kenya, Zambia and Malawi", property grabbing appears to be merely a symptom of a much deeper crisis confronting Africa - that of chronic poverty. "In affected countries, therefore, many (including women) see the dispossession of widows and orphans as a fact of life, not a problem to be overcome. Widows and orphans are expected to cope - the former by returning to their parents--the latter by accepting whatever guardianship is arranged for them, no matter how oppressive--not to complain," McPherson notes. The issue here borders on culture versus the Constitution, Church and Society of the Livingstonia Synod.
WLSA therefore wants the courts to recognise household and care-giving work that is performed during the marriage as an economic activity that contributes to the acquisition of the family's property.