Women and Justice: Topics: Property and inheritance rights

Legislation

Цивільний кодекс України № 435-IV 2003, статті 1258-1259, 1261-1265: принципи спадкування за законом (Civil Code, arts. 1258-1259, 1261-1265: principles of inheritance by law) (2003)


Property and inheritance rights

Article 1258 of the Civil Code of Ukraine defines the rules of intestate inheritance, or inheritance without a will. If a person did not write a will, or made a will and canceled it before their death, then inheritance proceeds in accordance with the legislation. The grounds for inheritance according to law can be family relationships, adoption, or dependence on the testator for at least five years before his death. For example, children of the testator, including those who were born after his death, parents of the deceased person, and the surviving spouse have the right to inherit as heirs of the first line. Each of five lines of heirs (defined in Articles 1261-1265) receives the right to inherit in the order set in legislation. Only the types of heirs enumerated in legislation are eligible for inheritance rights at law. However, the order in which the heirs receive the right to inherit according to the law can be changed by a notarized agreement of the interested heirs. It is important to note that persons who lived with the testator as a family for at least five years before their death have the right to inherit as heirs of the fourth line. This means that, while the legally registered wife of a man who died intestate will inherit as an heir of the first line, a woman who lived in a civil (unregistered) marriage with a man who died intestate can only inherit as a heir of the fourth line. Accordingly, the probability that a woman in a civil marriage will inherit property after the death of her civil husband is rather low because there are likely to be higher-line heirs who will inherit before her. Moreover, a woman who lived in a civil marriage with the deceased must prove in court that they lived together as family and were not in any other marriage. Appropriate evidence of living as family without marriage registration are, for example: (i) birth certificates of children; (ii) photos, letters, or documents demonstrating that they operated a joint farm, etc.

Стаття 1258 ЦК України визначає правила спадкування без заповіту. Якщо особа не склала заповіту або склала заповіт і скасувала його перед смертю, то спадкування відбувається відповідно до законодавства. Підставою для спадкування за законом можуть бути родинні зв'язки, усиновлення або перебування на утриманні спадкодавця не менше п'яти років до його смерті. Наприклад, право на спадкування як спадкоємці першої черги, мають діти спадкодавця, у тому числі ті, що народилися після його смерті, батьки померлого та той з подружжя, який пережив. Кожна з п'яти черг спадкоємців (визначених статтями 1261-1265) отримує право на спадкування в порядку, встановленому законодавством. Право на спадкування за законом мають лише види спадкоємців, перелічені в законодавстві. Але черговість виникнення спадкоємцями права на спадкування за законом може бути змінена нотаріально посвідченою угодою заінтересованих спадкоємців. Важливо зазначити, що право на спадкування як спадкоємці четвертої черги мають особи, які проживали зі спадкодавцем сім’єю не менше п’яти років до його смерті. Це означає, що, якщо жінка, перебувала в офіційно зареєстрованому шлюбі із чоловіком, який помер без заповіту, то вона спадкує як спадкоємець першої черги, а жінка, яка проживала в цивільному (незареєстрованому) шлюбі з чоловіком, який помер без заповіту, може успадкувати лише як спадкоємець четвертої черги. Відповідно ймовірність того, що жінка, яка перебуває у цивільному шлюбі, успадкує майно після смерті цивільного чоловіка, є досить низькою, оскільки, ймовірно, будуть спадкоємці попередніх черг, які успадкують раніше неї. Крім того, жінка, яка проживала з померлим у цивільному шлюбі, повинна довести в суді, що вони проживали разом сім'єю і не перебували в іншому шлюбі. Відповідними доказами проживання сім'єю без реєстрації шлюбу є, наприклад: (I) свідоцтва про народження дітей; (II) фотографії, листи або документи, які підтверджують, що вони керували спільним господарством тощо.



Цивільний кодекс України № 435-IV 2003, статті 1243: заповіт подружжя (Civil Code, art. 1243: spouses' joint will) (2003)


Property and inheritance rights

This article established the right of married couples to create a joint will to manage the inheritance of property that the spouses own together. Under a joint will, the deceased spouse’s share of the spouses’ joint property passes to the surviving spouse. No one else can inherit property included in a joint will until after the death of the second spouse. For example, if the spouses made a joint will in which they bequeathed their property to their children in equal shares, the children will be able to receive the inheritance (only after death of both spouses). Each of the spouses has the right to refuse to create or retract such a will. Only a man and a woman who are officially in registered marriage may create a joint will. Cohabitation of a woman and a man without marriage is insufficient to make a joint will. In addition, a joint will can only govern property owned jointly by the spouses (for example, a house purchased during marriage).

Цією статтею встановлено право подружжя на створення спільного заповіту щодо майна, яке є спільною сумісною власністю подружжя. За спільним заповітом частка померлого у спільному майні подружжя переходить до того з подружжя, який його пережив. Ніхто інший не може успадкувати майно, включене у спільний заповіт (лише після смерті другого з подружжя). Наприклад, якщо подружжя склало спільний заповіт, в якому заповідало своє майно дітям у рівних частках, то діти зможуть отримати спадщину лише після смерті обох з подружжя. Кожен із подружжя має право відмовитися від складання або скасувати такий заповіт. Скласти спільний заповіт можуть тільки чоловік і жінка, які перебувають в офіційно зареєстрованому шлюбі. Для складання спільного заповіту недостатньо спільного проживання жінки та чоловіка без шлюбу. Крім того, спільний заповіт може складатись лише щодо майна, яке є спільною власністю подружжя (наприклад, будинок, придбаний під час шлюбу).



Цивільний кодекс України № 435-IV 2003, статті 1241: право непрацездатної вдови на обов'язкову частку у спадщині (Civil Code, Art. 1241: incapacitated widow's right to share of inheritance) (2003)


Property and inheritance rights

Article 1241 of the Civil Code of Ukraine provides for a special type of inheritance regardless of the content of the will. This article establishes the rule that a certain category of heirs, including incapacitated widows, will inherit half of the share (“compulsory share”) that would belong to them pursuant to inheritance by law. An “incapacitated citizen” is, for example, a person who has reached the age at which they have the right to a pension, a person with a disability, etc. This rule is meant to protect the testator’s closest relatives. The court may reduce size of a compulsory share, depending on the relationship between the heirs and the testator, as well as other significant circumstances (for example, the heir’s property status). According to the law, it is not possible to deprive the heir of the right to a compulsory share in the inheritance.

Статтею 1241 ЦК України передбачає особливий вид спадкування незалежно від змісту заповіту. Ця стаття встановлює правило, згідно з яким певна категорія спадкоємців, у тому числі непрацездатні вдови, успадковує половину частки ("обов’язкової частки"), яка належала б їм в порядку спадкування за законом. "Непрацездатним громадянином" є, наприклад, особа, яка досягла віку, з якого вона має право на пенсію; особа з інвалідністю тощо. Ця норма покликана захистити найближчих родичів спадкодавця. Суд може зменшити розмір обов’язкової частки залежно від відносин між спадкоємцями та спадкодавцем, а також інших обставин, що мають істотне значення (наприклад, майнового стану спадкоємця). Відповідно до закону, позбавити спадкоємця права на обов'язкову частку у спадщині не можна.



Сімейний кодекс України № 2947-III 2002, стаття 74: право власності на майно під час проживання в цивільному шлюбі (Family Code, art. 74: title to property in civil marriage) (2002)


Divorce and dissolution of marriage, Property and inheritance rights

Article 74 of the Family Code of Ukraine establishes rules governing property division in “civil marriages,” meaning that a woman and a man live together as a family but are not legally married to each other or to anyone else. Any property acquired by a couple in a civil marriage while living together is their joint property that will be shared or divided equally after the marriage ends, unless otherwise defined in a written agreement. Thus, in theory, the legal status of the property acquired by persons in a civil marriage is the same as the legal status of the property of the spouses. However, it is not always clear how to prove the existence of a valid civil marriage, which often leaves women without property rights protection when such relationships end. For example, a civil husband or wife claiming property rights based on civil marriage must establish when the civil marriage began in order to determine the property acquired during its existence, but the legislation does not clearly define the terms “cohabitation” or “living as a family.” Most often, cohabitation is proven by testimony of witnesses and documents (for example, documents confirming expenses for joint property).

Стаття 74 Сімейного кодексу України встановлює правила поділу майна у "цивільному шлюбі", тобто, коли жінка та чоловік проживають однією сім’єю, але їх шлюб офіційно незареєстрований між собою чи з кимось іншим. Будь-яке майно, придбане подружжям у цивільному шлюбі під час спільного проживання, є їхньою спільною власністю, яка буде поділена порівну після припинення шлюбу, якщо інше не визначено письмовим договором. Таким чином, в теорії правовий статус майна, набутого особами у цивільному шлюбі, збігається з правовим статусом майна подружжя. Однак, не завжди зрозуміло, як довести наявність дійсного цивільного шлюбу, що часто залишає майнові права жінок незахищеними після припинення таких відносин. Наприклад, цивільний чоловік або дружина, який/яка претендує на майнові права на підставі цивільного шлюбу, має встановити час виникнення цивільного шлюбу, але законодавством чітко не визначено поняття "спільне проживання" чи "проживання однією сім’єю". Найчастіше спільне проживання підтверджується показаннями свідків і документами (наприклад, документами, що підтверджують витрати на спільне майно).



Сімейний кодекс України № 2947-III 2002, статті 68-70: право на спільне майно після розірвання шлюбу (Family Code, arts. 68-70: rights to joint property after divorce) (2002)


Divorce and dissolution of marriage, Property and inheritance rights

These articles determine the legal consequences related to joint property of the spouses after the dissolution of the marriage. Dissolution of marriage shall not terminate the joint ownership of any property acquired in marriage, meaning that co-owners shall manage any property that remains in their joint ownership upon divorce only on the basis of their mutual agreement. However, the Family Code protects the rights of divorced spouses: (i) they can agree to divide ownership of the joint property or (ii) apply to the court to the divide the joint property after the dissolution of the marriage. As a general rule, any joint property must be allotted to the spouses in equal shares unless otherwise agreed or contracted. However, in determining the division of joint property, the court may divert from the rule of equal shares in the light of any vital circumstances, such as either spouse was not contributing to the family maintenance, concealed assets, eliminated or caused damage to any joint assets, or used any joint assets in a way that was detrimental to the family interests. Children living with one of the spouses in itself is not a reason for increasing the share in the property of one of the spouses.

Ці статті визначають правові наслідки щодо спільного майна подружжя після розірвання шлюбу. Розірвання шлюбу не припиняє право спільної власності на будь-яке майно, набуте в шлюбі, тобто співвласники розпоряджаються майном, яке залишається в їхній спільній власності після розірвання шлюбу, лише за взаємною згодою. Проте, Сімейний кодекс захищає права розлученого подружжя: (I) вони можуть домовитися про поділ спільного майна або (II) звернутися до суду з позовом про поділ спільного майна після розірвання шлюбу. За загальним правилом будь-яке спільне майно подружжя має бути розподілене між подружжям у рівних частках, якщо інше не встановлено домовленістю чи договором. Однак, вирішуючи питання про поділ спільного майна, суд може відхилитися від правила рівних часток у світлі будь-яких життєво важливих обставин, наприклад, якщо будь-хто з подружжя не брав участі в утриманні сім’ї, приховував активи, знищив або завдав шкоди будь-якому спільному майну або використовував будь-які спільні активи у спосіб, який завдавав шкоди інтересам сім’ї. Саме по собі проживання дітей з одним із подружжя не є підставою для збільшення частки у майні одного з подружжя.



Сімейний кодекс України № 2947-III 2002, статті 60-63, 65: набуття та право управління майном, яке є спільною сумісною власністю подружжя (Family Code, arts. 60-63, 65: right of spouses to manage jointly owned property) (2002)


Divorce and dissolution of marriage, Property and inheritance rights

Articles 60-61 state that any property acquired during marriage shall be jointly owned by the spouses regardless of whether either spouse did not make their own income for a valid reason (studies, household matters, children care, sickness, etc.). Unless proven otherwise, every item acquired in marriage other than individual-use items shall be deemed to be jointly owned by the couple. Article 62 states that if a spouse’s property has significantly grown in value during the marriage (term “significantly grown in value” is subject to an evaluation comparing the value of the property before and after improvements due to joint labor or monetary expenses of the second spouse), the court may find that such property is jointly owned by the spouses. Articles 63-65 determine that the spouses shall have equal rights to own, possess, use, and manage any belongings owned jointly by them unless they agree otherwise.

У статтях 60-61 встановлено, що будь-яке майно, набуте за час шлюбу, є спільною сумісною власністю подружжя незалежно від того, що хтось із подружжя не отримував власних доходів з поважних причин (навчання, побутові справи, догляд за дітьми, хвороба тощо). Якщо не буде доведено інше, кожна річ, придбана у шлюбі, крім речей особистого користування, вважається спільною власністю подружжя. Стаття 62 визначає, що якщо майно подружжя за час шлюбу істотно збільшилось у вартості (термін "істотне збільшення вартості" підлягає оцінці, шляхом порівняння вартості майна до та після поліпшень, внаслідок спільної праці чи грошових витрат другого з подружжя), суд може визнати таке майно спільною сумісною власністю подружжя. Статті 63-65 визначають, що подружжя має рівні права власності, володіння, користування та управління будь-яким майном, яке є їх спільною власністю, якщо вони не домовилися про інше.



Сімейний кодекс України № 2947-III 2002, Статті 57, 59: право дружини та чоловіка на приватну власність (Family Code, arts. 57, 59: right of wife and husband to own individual private property) (2002)


Divorce and dissolution of marriage, Property and inheritance rights

Article 57 of the Family Code of Ukraine defines a list of types of property that are not considered joint property of spouses, for example: (i) any property acquired by either spouse before getting married; (ii) any property acquired under a gift agreement or as heritage during the marriage; (iii) any property acquired during marriage with one spouse’s own money; (iv) personal items such as jewelry, even if acquired with money owned jointly by the spouses, etc. However, according to Ukrainian legislation and judicial practice, there is a presumption of joint spousal ownership: it is assumed that all property of the spouses is their joint property and subject to division, until proven otherwise. When deciding whether property belongs to both spouses, Ukrainian courts are guided by criteria including the time of acquisition of the property and the funds with which such property was acquired (source of acquisition). For example, if property was acquired with personal funds during the marriage, the property is not joint property of the spouses, but rather is the personal private property of the spouse who purchased it. At the same time, if it is not confirmed that the property was bought with personal funds, the presumption of joint ownership of the spouses will remain. The spouse contesting the claim that the property is individual property bears the burden of rebutting the presumption of joint. When managing property, Article 59 requires that spouses must consider the interests of the child and other family members who are lawfully authorized to use their property.

Стаття 57 Сімейного кодексу України визначає перелік видів майна, яке не є спільною сумісною власністю подружжя, наприклад: (I) будь-яке майно, набуте одним із подружжя до шлюбу; (II) будь-яке майно, набуте за договором дарування або в порядку спадкування; (III) будь-яке майно, придбане під час шлюбу за особисті кошти одного з подружжя; (IV) особисті речі, такі як ювелірні вироби, навіть якщо вони придбані за кошти, які є спільною власністю подружжя, тощо. Однак, згідно з українським законодавством та судовою практикою, існує презумпція спільної власності подружжя: вважається, що все майно подружжя є їхньою спільною власністю і підлягає поділу, доки не буде доведено інше. Вирішуючи питання про належність майна обом подружжю, українські суди керуються такими критеріями, як час набуття майна та кошти, на які таке майно набуто (джерело набуття). Наприклад, якщо майно було придбано за особисті кошти під час шлюбу, це майно не є спільною власністю подружжя, а є особистою приватною власністю того з подружжя, який його придбав. При цьому, якщо не буде підтверджено факт придбання майна за особисті кошти, презумпція спільної власності подружжя збережеться. Той з подружжя, який заперечує вимогу про те, що майно є індивідуальною власністю, несе тягар спростування презумпції спільної власності. Стаття 59 вимагає, щоб подружжя при управлінні майном зважало на інтереси дитини та інших членів сім’ї, які за законом мають право користуватися їх майном.



قانون الأحوال الشخصية الأردني (Personal Status Law of 2019) (2019)


Divorce and dissolution of marriage, Forced and early marriage, Harmful traditional practices, Property and inheritance rights

Article 10 (A) raised the legal marriage age to 18 from the age of 15. However, Paragraph B of Article 10 carves out discretion for the Judge, upon approval of the Chief Justice, to permit the marriage of anyone who is at least 16 years old if it is deemed to be in his or her best interest based on the Judge’s determination. The person would also acquire a legal capacity in relation to marriage and divorce matters. Article 11 expressly forbids the formation of a marriage agreement where the man is more than 20 years older than the woman, except in the circumstance where the judge has verified the woman’s consent. Before authorizing a marriage, Article 13 requires that: 1) the man has the financial capacity to pay his fiancée’s dowry; 2) the man has the financial capacity to provide marital alimony; and 3) the man disclose to his fiancée that he is already married to another woman; and 4) the court inform the man’s wife or wives of the new marriage contract. In addition, according to Article 21, for a marriage to be valid, the man has to be compatible with the woman in terms of religion and financial capacity. Financial capacity is determined by the capacity to provide dowry promptly and marital alimony if necessary. Article 19 provides that women over the age 18 may marry without the consent of their guardian, if they are of sane mind. Article 37 further allows women to make any stipulations in her marriage contract as she desires, as long as these are not prohibited by Sharia law, do not affect the rights of others, and are not otherwise unlawful. These could include that the husband not prevent her from working outside the home or expel her from the country. Violations of such legal stipulations may result in the nullification of the marriage, and she would be entitled to all her rights associated to the marriage. Not providing marital alimony to the wife (Article 115), and the absence of the husband for a year or more when his place of residence is known (Article 119), not providing marital dowry (Article 139) are all valid grounds for nullifying the marriage according to this Law.

رفعت الفقرة (أ) من المادة 10 سن الزواج ليصبح 18 عام بعدما كان 15 عام، إلا أن الفقرة (ب) من ذات المادة جعلت هناك حالات خاصة يمكن للقاضي فيها السماح بالزواج لمن بلغ عمر 16 عام وذلك في حال كان الزواج ضرورة تقتضيه المصلحة، بعد موافقة قاضي القضاة، وفقًا لتعليمات يصدرها لهذه الغاية. ويكتسب، من تزوج وفق ما سبق، الأهلية الكاملة في كل ما يتعلق بالزواج والفرقة وآثارهما. أما المادة 11 فقد منعت الرجل من عقد زواج على امرأة يكبرها بأكثر من 20 عام دون تأكد القاضي من رضاها واختيارها. بينما أشارت المادة 13 إلى أنه يجب على القاضي التأكد من عدة أمور قبل إجراء عقد زواج المتزوج وهي قدر الزوج المالية على المهر وعلى الإنفاق على ما تجب عليه النفقة، بالإضافة إلى معرفة المخطوبة أن خاطبها متزوج بأخرى. كما أوجبت ذات المادة على المحكمة إبلاغ الزوجات الآوائل بعقد الزواج الجديد بعد إتمامه وذلك بحسب قانون أصول المحاكمات الشرعية. كما نصت المادة 21 أن الكفاءة قس الدين والمال بين المرأة والرجل هي شرط للزوم الزواج، وكفاءة المال تقاس بقدرة الزوج على المهر المعجل ونفقة الزوجة. وبينت المادة 19 أن موافقة الولي لا تشترط في زواج المرأة الثيب العاقلة المتجاوزة من العمر 18 سنة. وذكرت المادة 37 إلى أنه إذا اشترطت الزوجة على زوجها شرطًا تتحق لها به مصلحة غير محظورة شرعًا ولا يمس حق غيرها، مثل أن لا يخرجها من بلدها أو عدم الزواج بغيرها أو أن لا يمنعها من العمل، يعتبر الشرط صحيح وعدم الوفاء بالشروط فسخ العقد بطلب الزوجة ولها أن تطالب بسائر الحقوق الزوجية. عدم تزويد المرأة بالنفقة الزوجية (مادة 115)، وغياب الزوج عن زوجته سنة فأكثر مع معرفة مكان إقامته (مادة 119)، وعجز الزوج عن دفع المهر بعضه أو كله، جميعها أسباب تجعل للمرأة الحق في أن تطلب من القاضي فسخ الزواج.



Loi No. 2014-873 du 4 Août 2014 pour l’égalité réelle entre les femmes et les hommes (Law relating to real equality between women and men) (2014)


Domestic and intimate partner violence, Forced and early marriage, Property and inheritance rights

Articles 32-53 of this law reinforced the provisions of the French Civil and Criminal Codes to provide enhanced protection to victims of domestic violence, including in relation to custody and housing. Articles 54-55 of the law reinforced the provisions of the French Civil Code preventing forced marriages. Notably, pursuant to Article 55, notwithstanding that each spouse’s “loi personnelle” (i.e., the law of the country of which the spouse is a national) generally determines the criteria and conditions required to marry, each spouse’s consent is required regardless of the spouses’ “loi personnelle.”

Articles 32-53 de la loi renforce les provisions du Code Civil et Code Pénal Français avec le but de renforcer la protection pour les victimes de violences domestiques, en particulier liée à la garde des enfants et du logement. Articles 54-55 de cette loi renforce les provisions du Code Civil Français avec l’objectif d’empêché les mariages forcés. En particulier, selon l’Article 55, même si chaque conjoint a une loi personnelle (la loi de leur pays de citoyenneté), qui normalement détermine les critères et conditions nécessaires pour un mariage, le consentement de chaque conjoint est requis.



Loi No. 2004-439 du 26 Mai 2004 relative au divorce (Law relating to divorce) (2004)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Article 22 modified the French Civil Code, establishing a new civil law for eviction of a violent spouse from the matrimonial home. Specifically, the law amended the French Civil Code to provide that, where a violent spouse puts their spouse or children in danger, the judge may order separate residence, indicating which spouse may continue to live in the matrimonial home. Absent special circumstances, it is the violent spouse who should be ordered to leave the matrimonial home.

Article 22 modifie le Code Civil français, en établissant une nouvelle loi civile par rapport à l’expulsion d’un conjoint violent du logement conjugal. En particulier, la loi modifie le Code Civil Français, pour donner le droit à un juge de préciser que si un des conjoints est violent et met l’autre conjoint ou les enfants en danger, le juge peut avoir le pouvoir de déclarer que seul un des conjoints puisse continuer à vivre dans la maison conjugale. Absent des circonstances particulières, c’est toujours le conjoint violent qui devra être ordonné de partir du logement conjugal.



Išmokų vaikams įstatymas (Law on Benefits for Children) (1994)


Property and inheritance rights

The legislation sets out various child benefits, such as a one-time payment for the birth or adoption of a child (EUR 462 in 2022) and entitlement to a monthly payment until a child reaches 18 years old (EUR 73,5 in 2022).

Šiame teisės akte nustatytos įvairios išmokos vaikui, pavyzdžiui, vienkartinė išmoka už vaiko gimimą ar įvaikinimą (462 EUR 2022 m.) ir teisė į mėnesinę išmoką, kol vaikui sueis 18 metų (73,5 EUR 2022 m.).



Constitution of Malawi (2017)


Domestic and intimate partner violence, Employment discrimination, Forced and early marriage, Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

In recognition of the inherent dignity and worth of each human, Article 12 requires that the State and all persons recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups, and minorities. All persons have equal status before the law. Limitations of rights are only justifiable insofar as they ensure peaceful human interaction in the context of an open and democratic society. Article 13 requires the State to actively promote the welfare and development of the people by affirmatively adopting legislation and policies to achieve gender equality. This requires: (i) women’s full participation in all spheres of society with opportunities equal to men; (ii) the implementation of nondiscrimination principles and other measures; and (iii) the implementation of policies addressing domestic violence, personal security, maternity benefits, economic exploitation, and rights to property, among other relevant social issues. Article 22 mandates that all members of a family shall enjoy equal respect and shall be protected under law against all forms of neglect, cruelty or exploitation. No person shall be forced to enter into any marriage, and no person over the age of 18 can be prevented from entering into marriage. All provisions of this section apply to civil, customary, and other forms of marriage. Article 24 specifically guarantees that women are entitled to full and equal protection of law, and have the right not to be discriminated against on the basis of gender or marital status. This includes the following rights: (i) equal rights under civil law, including equal capacity in the realms of contracts, property, custody, decision-making regarding children, and acquisition and retaining of citizenship and nationality; and (ii) upon the dissolution of marriage, entitlement to fair disposition of jointly held property and to fair maintenance. Further, any laws that discriminate against women are invalid and legislation must affirmatively be passed to eliminate customs and practices that discriminate against women. This affirmative requirement particularly applies to practices of: sexual abuse, harassment, or violence; discrimination in work, business, or public affairs; and deprivation of property (inherited or otherwise). Article 30 provides that, while all persons have a right to the enjoyment of economic, social, cultural and political development, women in particular shall be given special consideration in regards to this right. The State must take all necessary measures for the realization of this right, including reforms aimed to eradicate social injustice and inequality. Other gender-related provisions include: the prohibition of torture, inhumane, and degrading treatment or punishment (Article 19); Article 20’s ban on all forms of discrimination; the right to education for all people (Article 25); Article 27’s prohibition of slavery, servitude, and forced labor; and Article 31’s requirement that all persons are entitled to fair wages and equal remuneration for equal value work without discrimination of any kind, especially on the basis of gender.



Civil Code of Belarus (1998)


Property and inheritance rights

A person has the right to leave his or her property to one or several persons included or not included in the list of heirs under law, and has the right to deprive of an inheritance any and all of the heirs under law (including a surviving spouse) without giving a reason, in accordance with Art. 1041. Male and female heirs have the same right to inherit property in case the deceased does not leave a will, for example, the first-order heirs are the deceased’s children, surviving spouse, parents, and grandchildren, and second-order heirs are siblings and half siblings of the deceased, and their children in accordance with Arts. 1057-1061.



Marriage and Family Code Chapter 5: Rights and Obligations of the Spouses (1999)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Under Art. 20, spouses decide on issues related to their marriage and family relations jointly, by mutual agreement, and on the basis of equality. The relationship between the spouses must be based on mutual respect, assistance, and fair distribution of responsibilities. Spouses also have the right to resolve issues related to their personal interests independently. Spouses may choose any of their last names, a double last name, or leave their last name unchanged at their individual discretion in accordance with Art. 21. Both spouses are free to choose their occupation, profession, and place of residence in accordance with Art. 22. Under Art. 23, all property acquired during a marriage, even if one of the spouses did not have independent income during the time of the marriage due to being engaged in housekeeping or childcare, is the common joint property of the spouses. Both spouses have equal rights to the possession, use, and disposal of such property. However, property belonging to one spouse before marriage and property received during marriage by gift or inheritance remains the property of that spouse in accordance with Art. 26. In the event of division of the common joint property of the spouses, the property is divided equally in accordance with Art. 24.



ກົດໝາຍວ່າດ້ວຍ ຄອບຄົວ (ສະບັບປັບປຸງ) (Family Law (Revised)) (2008)


Divorce and dissolution of marriage, Forced and early marriage, Property and inheritance rights

The law defines matrimonial and family relationships and sets out protections of mothers’ and children’s interests in family life and upon divorce. The law establishes that men and women have equal rights in all aspects pertaining to family relationships and have freedom to marry upon reaching the age of marriage. The law provides that marriage should be entered into on the basis of mutual consent. The law prohibits various forms of discrimination against women, such as through polygamy, unequal use of matrimonial properties during a marriage, and unlawful division of matrimonial properties upon divorce. The law states that husband and wife have right to engage in political, economic, cultural, and social activities. It further provides that both husband and wife have joint right to choose place of residence and the respective right to select family name. The law also sets out provisions for divorce. In case of divorce, the Court may order a former husband to pay child support; and when his former wife is sick and unable to meet her own needs, the Court may also order a former husband to pay alimony for a period which shall be less than one year.



Civil and Commercial Code (as amended until Code (No. 18), B.E. 2551 (2008)) Book V, Chapter IV (2008)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

This Code comprises the main body of laws of Thailand and regulates many aspects of Thai law. Section 1502 states that divorce may be effected only by mutual consent or by judgment of the court. The grounds of action for divorce are set out at Section 1516 and do not discriminate between genders. The grounds include unfaithfulness; misconduct that causes shame, excessive injury or trouble, or causes a spouse to be insulted or hated on account of being the spouse of the perpetrator; a spouse causes serious harm to the mind or body of the other or seriously insults the other’s ascendants; desertion or imprisonment; separate cohabitation; failure to provide maintenance or support; insanity; incurable and communicable disease or physical disadvantage so that cohabitation is not possible; and breaking a bond of good behavior. There are certain circumstances in which a spouse may not be able rely on one of these grounds for divorce, including: (1) they instituted, consented, or conspired to the act or caused it (in relation to physical disadvantage), or (2) the ground of action is minor or of no importance in relation to peaceful cohabitation. The right to institute an action for divorce is terminated if the spouse entitled has committed any act showing his or her forgiveness (Section 1518). According to Section 1533 upon divorce, the marital assets shall be divided equally and under Section 1535, the spouses would be equally liable for common debts. The remedies for divorce include a right for the aggrieved to claim compensation or living allowances.

Thai laws available here.



Código Civil y Comercial: Artículos 2433-2436 (Sucesión del cónyuge) (2014)


Property and inheritance rights

If the descendants inherit, the spouse shares in the hereditary estate in the same proportion as sons and/or daughters. If the ascendants inherit, half of the inheritance corresponds to the spouse. In the absence of descendants and ascendants, the spouse inherits the entirety of the estate. The spouse does not inherit if the deceased dies within 30 days of the marriage due to an illness, which existed at the time of marriage and was known by the survivor to have a foreseeable fatal outcome, unless, the marriage was preceded by a union in joint habitation.

Si los descendientes heredan, el cónyuge comparte la herencia hereditaria en la misma proporción que los hijos y / o hijas. Si los ascendientes heredan, la mitad de la herencia corresponde al cónyuge. En ausencia de descendientes y ascendientes, el cónyuge hereda la totalidad de la herencia. El cónyuge no hereda si el fallecido muere dentro de los 30 días posteriores al matrimonio debido a una enfermedad, que existía en el momento del matrimonio y que el sobreviviente sabía que tenía un desenlace fatal previsible, a menos que el matrimonio fuera precedido por una unión en habitación conjunta.



Civil Code (marriage, property, and inheritance) (2000)


Forced and early marriage, Gender discrimination, Property and inheritance rights

The Code sets various provisions related to marital property and duties. It also sets the minimum age for marriage at 18.

El Codigo establece varias leyes relacionadas a la propiedad y deberes matrimoniales. Tambien designa 18 como la edad minima para el matrimonio legal.



The Customary Marriage and Divorce (Registration) (Amendment) Law (1991)


Divorce and dissolution of marriage, Property and inheritance rights

This amends the previous law to make the registration of customary marriages optional rather than mandatory. The law also makes optional notification to the state of the dissolution of customary marriages registered under the act. The amendment mandates that a marriage performed under customary law under the act will follow customary intestate succession law granting that the reviewing court or tribunal is satisfied by oral or documentary evidence that the deceased and surviving spouse had been validly married under customary law.



Intestate Succession Law (1985)


Gender discrimination, Property and inheritance rights

The Intestate Succession Act governs family inheritance when a property owner dies without a will. The law provides a uniform system of intestate succession applicable regardless of the type of marriage (i.e., secular, customary, or Muslim). The estate is distributed through the various sections according to the number and type of heirs involved in the distribution. Section 5, for example, sets guidelines for how to divide an estate survived by both spouse and child, while section 6 dictates how to divide an estate when survived by a spouse only.



Head of Family Accountability Act (1985)


Property and inheritance rights

This Act intends to protect the rights of all parties to a family estate by increasing the accountability of the executor or head of family. Section 1 mandates that the executor or head of family account for all matters related to the family estate. Section 2 dictates that any member of the family connected to the property may file a claim of mismanagement against the head of family in court. Finally, section 3 gives the court the power to order the head of the family to list all the family properties he owns.



Matrimonial Causes Act (1971)


Divorce and dissolution of marriage, Property and inheritance rights

This Act relates to divorce, nullity of marriages, and child custody. According to Section 1, a petition for divorce will only be granted if the “marriage has broken down beyond reconciliation,” which includes adultery, unreasonable behavior, desertion, and unreconcilable differences. The petition may be filed by either party. Part 2 discusses other matrimonial issues, such as nullity of marriage, presumption of death, and neglect. Finally, Part 3 outlines the Court’s power to split property between the parties and decide child custody. To that end, the Court can issue restraining orders to prevent one party from leaving the jurisdiction or removing a child of the household from the jurisdiction.



Children's Act (1998)


Forced and early marriage, Property and inheritance rights, Trafficking in persons

This Act consolidates the laws relating to children. It provides an overview of children’s rights, delineates the broad requirements concerning child maintenance and adoption, regulates child labor and apprenticeship, and discusses other ancillary matters concerning children generally. Part 1, Sub-Part 1 specifies several children’s rights and parental duties such as the right to parental property, education and well-being, social activity, and opinion. This Sub-Part also protects children from exploitative labor, torture, degrading treatment, and forced betrothal, dowry, or marriage. The penalty for any violation of these rights is imprisonment not to exceed one year or the payment of a fine not to exceed 5 million currency points or both. Section 14 of this Sub-Part sets the minimum age for any marriage at 18. Part IV of the Act then outlines the adoption process and gives jurisdiction to the High Court, Circuit Court, or Family Tribunal in the area where the adopter or adoptee resides at the time of the application. It further states that only a minor (a child under the age of 18) can be adopted by husband and wife jointly; father or mother alone or jointly with the spouse; a relative of 21 years; or a single person of 25 years and at least 21 years older than the child to be adopted. Finally, Part V of the Act delimitates the employment of children and prohibits any type of work before 13 years old.



Constitution of the Republic of Ghana (Amendment Act 1996) (1996)


Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 15 of the Constitution of the Republic of Ghana relates to respect for human dignity and prohibits torture or cruel and inhuman punishment. Article 16 prohibits involuntary servitude or slavery. Article 17 relates to equality and non-discrimination and establishes that every person in Ghana is equal before the law. To this end, Article 17 specifically prohibits discrimination on the grounds of gender, race, color, ethnic origin, religion, creed, or social or economic status. Article 18 pertains to property rights and states that every person has the right to own property either alone or in association with others. Article 22 builds upon Article 18 and establishes that a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died with a will. Article 22 states that Parliament shall enact legislation regulating the property rights of spouses as soon as possible after the Constitution came in to force. Article 22 clarifies that spouses shall have equal access to property jointly acquired during marriage and that assets that are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. Article 24 of the Ghanaian Constitution concerns economic rights and establishes pay parity as a constitutionally enshrined principle. It states that every person has the right to work under satisfactory, safe, and healthy conditions and shall receive equal pay for equal work without distinction of any kind. Article 26 concerns cultural rights and practices and states that (a) every person is entitled to enjoy, practise, profess, maintain, and promote any culture, language, tradition, or religion subject to the provisions of the Constitution; but also that (b) all customary practices that dehumanise or injure the physical and mental well-being of a person are prohibited. Article 27 refers specifically to women’s rights. It states that special care shall be accorded to mothers during a reasonable period before and after childbirth; and during these periods, working mothers shall be entitled to paid leave; that facilities shall be provided for the care of children below school-going age to enable women, who traditionally care for children, to realise their full potential; and that women shall be guaranteed equal rights to training and promotion without impediments. Article 36(6) refers specifically to the economic obligations of the state, which include ensuring that the State afford equality of economic opportunity to all citizens. Article 36(6) emphasizes that the State must take all necessary steps to ensure the full integration of women as equal partners in Ghana’s economic development.



Constitution of Liberia (1986)


Gender discrimination, Property and inheritance rights

Article 11 guarantees fundamental rights and freedoms to all persons regardless of sex, ethnicity, race, political opinion, or national origin. Article 18 prohibits employment discrimination based on sex. Article 23 provides that the property obtained by a person during marriage because of his or her own labor shall not be used to satisfy the obligations of his or her spouse, nor shall the property be controlled by a spouse. It states further that the legislature is compelled enact laws to provide equal protection to the surviving spouses and children in both statutory and customary marriages.



Domestic Relations Law (1973)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Domestic Relations Law of 1973 governs various aspects of marriage, divorce, and custody of children—while also providing protections for women’s property rights in marriage. The statute sets forth the requirements for a valid marriage, procedures to obtain a marriage license, duties and liabilities in marriage, guardianship and adoption of children, and the procedures to obtain a divorce. Chapter 2 outlines the requirements for a valid marriage. §2.2 provides that when men reach 21 years old and women reach 18 years old, they are per se capable of entering into marriage. §2.2 prohibits marriage of those under 16 years old. §3.4 provides that a woman retains the property she owns at the time of her marriage or receives during the marriage. §3.5 provides that a woman has the right to sue her husband for the injury caused by him during the marriage. Contrary to the law in most countries, §4.1 mandates that both parents have equal custody rights when they live in the same household, but that the husband becomes the sole custodian of the children upon their separation. §5.3 provides, however, that the wife is responsible to support the children when the husband is dead or cannot be found. §6.1 provides that bigamous and incestuous relationships are void marriages. §8.1 outlines the grounds for divorce, including inhuman treatment that causes danger to the plaintiff-spouse’s physical and mental well-being, the defendant-spouse’s desertion of the plaintiff-spouse for a period of one or more years, the defendant-spouse’s adultery, or incompatibility of temper that results in danger to a spouse. With respect to divorce, the Supreme Court of Liberia has affirmed that a court has discretion to deny a divorce if the plaintiff is responsible for the incompatibility (see, e.g., Korkoya). §13.2 provides that injury caused to the wife in the domestic relationship may subject the husband to civil compensatory damages and punitive damages.



Charter of Human Rights and Responsibilities Act (Victoria) (2006)


Employment discrimination, Female genital mutilation or female genital cutting, Forced sterilization, Gender discrimination, Property and inheritance rights, Trafficking in persons

The Charter aims to protect and promote the human rights set out in Part 2, including property rights and freedom from forced work (slavery), as well as the right to enjoy those human rights without discrimination. With respect to any proposed new law, the Victorian Parliament must prepare a “statement of compatibility,” which must examine the proposed law’s compatibility (or incompatibility) with the human rights protected in the Charter. While this statement has no effect on the validity of any law, it furthers the purpose of the Charter in promoting human rights. Further, under section 32 of the Charter, all statutory provisions must be interpreted in a way that is compatible with human rights (to the extent it is possible to do so consistently with their purpose). The Charter also allows the Victorian Equal Opportunity and Human Rights Commission to intervene in any court or tribunal proceeding in relation to the Charter.



Ärvdabalk (1958:637 - Inheritance Code) (1958)


Property and inheritance rights

If a married person dies, the surviving spouse inherits the estate of the deceased. The spouses’ common children inherit from both spouses when the surviving spouse dies. If the spouse who dies had children with another person at the time of their passing, the non-common children may receive their inheritance immediately. It is possible to write a will on who is to inherit, however, a direct heir (e.g. the deceased’s non-common child) always has the right to its share of that spouse’s inheritance. Cohabitees do not inherit from one another and will have to write a will that regulates the inheritance in case one of them dies.



Domestic Violence and Matrimonial Proceedings Act (1976)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

The Domestic Violence and Matrimonial Proceedings Act of 1976 allows women to obtain a court order against abusive husbands without the need for divorce or separation proceedings. In addition, women can obtain a court order to remove a co-inhabitant from matrimonial home, regardless of whether the co-inhabitant owns the home. Case law has extended this Act to cover joint tenancies outside of marriage. See Case Law Section below.



Për Masa Ndaj Dhunës në Marrëdhëniet Familjare (On Measures Against Violence in Family Relations) Ligji Nr. 9669 i datës 18.12.2006 (2006)


Domestic and intimate partner violence, Property and inheritance rights

Article 10 (Protection Measures against Domestic Violence) provides the court with the power to order, among other things, the immediate removal of the perpetrator from the place of residence for a certain period of time, the prohibition of the perpetrator from being within a certain distance of the victim, a court officer to accompany the victim or the perpetrator to the victim’s residence to remove personal belongings, and the perpetrator to pay rent as well as certain support contributions to the victim, children, or other members of the family under their care. (English translation available here.)



Constitution of Belarus (2004)


Employment discrimination, Gender discrimination, Property and inheritance rights

The Constitution provides for the general principles of equality and non-discrimination. Article 4 provides that democracy shall be exercised based on diversity of political institutions, ideologies and opinions. It also provides that the ideologies of different entities may not be made mandatory for citizens. Article 14 provides that the State shall regulate relations among social, ethnic and other communities on the basis of principles of equality before the law and respect of rights and interests. Article 16 states that religions and faiths shall have equality before the law. Article 22 provides that “all shall be equal before the law and have the right to equal protection of their rights and legitimate interest without any discrimination.” Further, Article 32 of the Constitution contains general protections with respect to marriage, family, motherhood, fatherhood and childhood. In particular, it provides that “on reaching the age of consent, a woman and a man shall have the right to enter into marriage on a voluntary basis and found a family. Spouses shall have equal rights in family relationships” and women shall be guaranteed equal rights as men in their opportunities to receive education and vocational training, promotion in labor, social and political, cultural and other spheres of activity as well as in creating conditions safeguarding their occupational health and safety. Article 42 provides a right to equal pay. According to Art. 44, the State guarantees to every person the right to own property, meaning the right to own, use, and dispose of property individually or jointly with other persons. The right of ownership and inheritance are protected by law. Unofficial English translation available here.



Matrimonial Proceedings and Property Ordinance (1972)


Divorce and dissolution of marriage, Property and inheritance rights

The Matrimonial Proceedings and Property Ordinance covers the kinds of ancillary and other relief that may be granted in matrimonial proceedings. Sections 4-7 of the Ordinance, in particular, cover the allocation of assets between a divorcing couple.



Matrimonial Causes Act (1990)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The Matrimonial Causes Act governs marriages, dissolution of marriage, and custody of children. According to Section 5(d) a marriage is voidable if at the time of marriage “the wife is pregnant by a person other than the husband.” However, by Section 35(c), only the husband can nullify the marriage because of pregnancy; the wife has no right to petition to do so. Under Section 47, both husband and wife have grounds for a decree of restitution of conjugal rights, if either refuse to cohabitate with and render conjugal rights to the other. With respect to the wife, if the husband has paid any money to her with respect to a decree under Section 47 and she refuses to comply with the decree within a reasonable time, the money paid becomes a debt due and payable by the wife to the husband and recoverable by action in court.



Violence Against Persons (Prohibition) Act (2015)


Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

As stated in the accompanying Explanatory Memorandum, the Violence Against Persons (Prohibition) Act aims to “prohibit[] all forms of violence against persons in private and public life, and provide[] maximum protection and effective remedies for victims and punishment of offenders.” The Act provides general protections against offenses including infliction of physical injury, coercion, offensive conduct, willfully placing a person in fear of physical injury, willfully making false statements against another person, damage to property with intent to cause distress, and deprivation of personal liberty. The Act also provides protections against offenses that affect women disproportionately, including a prohibition of female genital mutilation; forceful ejection from home; forced financial dependence or economic abuse; forced isolation; emotional, verbal and psychological abuse; harmful widowhood practices; and spousal battery, among others. Notably, the Act defines the offense of rape in Section 1(1) without an exception for marital rape, which had not traditionally been recognized as an offense (note that the Penal Code Act of 1960 does include an exception for marital rape). The Act provides a procedure for injured parties to apply for a protection order and empowers the High Court of the Federal Capital Territory with jurisdiction to hear and grant applications brought under the Act. As stated in Section 47, the Act is a product of federal legislation enacted in regard to criminal law, a residual matter over which the states have exclusive legislative power pursuant to the Nigerian Constitution. Thus, the VAPP Act applies only to the Federal Capital Territory and is not binding law in a state unless adopted by that state.



National Commission for Women Act (1992)


Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The National Commission for Women Act established the National Commission for Women to promote the general welfare of Nigerian women, “promote the full utilization of women in the development of human resources and bring about their acceptance as full participants in every phase of national development, with equal rights and corresponding obligations,” and “work towards total elimination of all social and cultural practices tending to discriminate against and de-humanise womanhood.” Some of the Commission’s objectives include “mobilizing women collectively in order to improve their general lot and ability to seek and achieve leadership roles in all spheres of society” and “raising consciousness about the rights of women, the availability of opportunities and facilities, their social, political, and economic responsibilities.”



Constitution of the Republic of Uganda (1995)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 21 of the Constitution of Republic of Uganda prohibits gender discrimination generally and enshrines the principle of equality before the law, regardless of sex, race, color, ethnicity, tribe, religion, political belief, or social or economic standing. Article 31 sets the minimum age for marriage at 18 and provides for equal rights between men and women during marriage and divorce. Article 33 pertains specifically to the rights of women and requires that (1) the government must provide opportunities to enhance the welfare of women and enable them to reach their full potential, (2) women have rights equal to men in areas including political, economic, and social activities, and (3) laws, customs, traditions, and cultures that are "against the dignity of women" are prohibited by the Constitution. Article 22 enshrines protection for the right to life and allows for abortion in accordance with the law.



The Married Persons Property Act of 2014 (2014)


Property and inheritance rights

The Married Persons Property Act of 2014 permits couples to change their marital property regime (i.e., in or out of community property). The Act applies ex post facto, and any couple married under the old act need only approach the High Court to change their property regime in or out of community of property. Change of property regime can be done only once during a marriage.



The Abolition of Marital Power Act 34 of 2004 (2004)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The full title of the Abolition of Marital Power Act 34 of 2004 is “An Act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married women, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto.” The Act provides for equal powers in property ownership for spouses. It also gives women equal powers to assume guardianship of minor children and in determining the domicile of their children. Furthermore, it removes the common law position of the husband as head of the family. Its effect is limited to common law marriage; it has no effect on customary or religious marriages (couples may marry under customary or common law).



Lei de Terras: Lei nº 19/97 (Land Law) (1997)


Property and inheritance rights

The law governs ownership and use of land. Articles 10 and 15 of the law provide that women have the same right as men to use and manage land. The law also provides that land can be inherited regardless of gender. However, article 12 states that land acquisition requires compliance with “customary norms and practices that are not contrary to the Constitution.”



Lei da Família: Lei nº 10/2004 (Family Code) (2004)


Divorce and dissolution of marriage, Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The law defines family relationships and establishes certain “rights of the family.” The law prohibits various forms of discrimination against women, including through polygamy, inheritance, age at marriage and choice of children. The law defines marriage as a “voluntary union between a man and a woman”, which requires mutual consent. Coerced marriage is subject to annulment. The law provides that both husband and wife have the right to “represent the family”, to administer the family finances, and to work. The law also outlines provisions for divorce. Husbands are required to pay child support in case of divorce,



2011 Amendments to the Constitution of Jamaica (2011)


Gender discrimination, Property and inheritance rights

The 2011 Amendments to the Jamaican Constitution specifically enumerated a “right to freedom from discrimination on the ground of . . . being male or female.” The amendments also guaranteed a number of fundamental rights and freedoms, including the right to be free from inhuman or degrading treatment and torture, and protection of the right to own property, receive an education, vote, and speak freely.



Art. 28b of the Swiss Civil Code: Domestic Violence, Threats or Harassment (2019)


Domestic and intimate partner violence, Property and inheritance rights

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause. The statute further provides that, when justified by the circumstances, the court may require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling, or, with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone. The statute requires the Swiss Cantons to designate an authority and to enact rules for the immediate expulsion of the offending party from the joint dwelling in urgent cases. Unofficial English translation available here.



Reform of Customary Law of Succession and Regulation of Related Matters Act 11 (2009)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.

Die Wet op Hervorming van die Gewoontereg van Opvolging en Regulering van Verwante Aangeleenthede 11 (2009)

Geslags diskriminasie, Skadelike traditionele gebruike, Eiendom en erfenisregte​

Die Wet skaf die gebruiklike rëel van primogeniture af vir sover dit van toepassing is op die erfreg en brei die toepassing van de Wet op Intestate Opvolging verder uit op die afgestorwe boedels van Afrikane wat intestaat sterf (sonder ‘n testament) en bevat riglyne vir die inerpretasie van die Intestate Opvolgingswet om uitvoering te gee aan die nuwe bepalings en om die beskerming van die regte van vroue om te erf te verseker.



Promotion of Equality and Prevention of Unfair Discrimination Act (2000)


Employment discrimination, Female genital mutilation or female genital cutting, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act is to give effect to section 9 of the Constitution of the Republic of South Africa, read in conjunction with item 23(1) of its sixth schedule. The effect of this is to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Section 8 expands on the provisions of Section 9 by setting out, without limitation, the following specific examples of such prohibited discrimination: (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; (e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as health education and social security; (h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons; and (i) systemic inequality of access to opportunities by women as a result of the sexual division of labor. The Act further regulates which party will bear the burden of proof in discrimination cases and further sets out which factors should be taken into account in determining whether discrimination is fair or unfair.

Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie (2000)

Diskriminasie op werksgeleenthede, verminking van vroulike geslagsorgane of sny van vroulike geslagsdele, geslagsdiskriminasie, geslagsgebaseerde geweld in die algemeen, skadelike tradisionele praktyke, regte op erf en erfenis, seksuele geweld en verkragting​

Die doel van die Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie is om uitvoering te gee aan artikel 9 van die Grondwet van die Republiek van Suid Afrika, in samewerking met artikel 23(1) van die Grondwet se sesde skedule. Die effek hiervan is om onbillike diskriminasie en teistering te voorkom en te verbied; om gelykheid te bevorder en onbillike diskriminasie uit te skakel; om haat-spraak te voorkom en te verbied; en om voorsiening te maak vir aangeleenthede wat daarmee verband hou. Artikel 8 brei die bepalings van Artikel 9 uit, sonder beperking, deur die volgende spesifieke voorbeelde van sodanige verbode diskriminasie uiteen te sit: (a) geslagsbaseerde geweld; (b) geslagtelike verminking van vroulike geslag; (c) die stelsel wat voorkoom dat vrouens familie-eiendom erf; (d) enige praktyk, met inbegrip van tradisionele, gebruiklike of godsdienstige praktyk, wat die waardigheid van vrouens belemmer en die gelykheid tussen vrouens en mans ondermyn, insluitend die ondermyning van die waardigheid en welstand van die meisie-kind; (e) enige beleid of optrede wat vrouens se toegang to grondreg, finansies en ander hulpbronne beperk; (f) diskriminasie op grond van swangerskap; (g) beperking van vrouens se toegang tot maatskaplike dienste of voordele soos gesondheidsopvoeding en sosiale sekuriteit; (h) die weierig van toegang tot geleenthede, insluitende toegang tot dienste of kontraktuele geleenthede vir die lewering van dienste vir oorweging, of versuim om stappe te neem om die behoeftes van sulke persone redelik te voorsien; en (i) sistematies ongelykheid van toegang tot geleenthede van vroue as gevolg van die seksuele verdeling van arbeid. Die Wet reguleer verder watter party die bewyslas in diskriminasiesake sal dra en lê verder uit watter faktore in ag geneem moet word by die bepaling of die diskriminasie billik of onbillik is.



中华人民共和国妇女权益保障法 (Law on the Protection of Women's Rights and Interests) (2005)


Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Law on the Protection of Women’s Rights and Interests was adopted by the National People’s Congress on April 3, 1999 and amended on August 28, 2005. This Law stipulates that women have equal rights with men “in all aspects of political, economic, cultural, social and family life.” It also establishes the State’s responsibility to prevent domestic violence. Article 1 provides that “this Law is formulated to protect women’s lawful rights and interests, promote equality between men and women and allow full pay to women’s role in socialist modernization.” Article 7 provides that “[t]he All-China Women’s Federation and women’s federations at various levels shall, in accordance with the laws and charter of the All-China Women’s Federation,” uphold women’s rights and protect the rights and interests of women. Article 12 provides that the State shall “actively train and select female cadres” and “pay attention to the training and selection of female cadres of minority nationalities.” Article 23 provides that “[w]ith the exception of the special types of work or post unsuitable to women, no unit may, in employing staff and workers, refuse to employ women because of sex or raise the employment standards for women.” Article 23 also provides that “[t]he labor (employment) contract or service agreement shall not contain restrictions on her matrimony and child-bearing.” Articles 24 and 25 stipulate equal pay and equal opportunity for promotion for men and women. Article 26 provides that all units shall “protect women’s safety and health during their work or physical labor, and shall not assign them any work or physical labor not suitable to women,” and that “[w]omen shall be under special protection during menstrual period, pregnancy, obstetrical period and nursing period.” Article 27 provides that “[n]o entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee’s wage, dismiss her or unilaterally terminate the labor (employment) contract or service agreement.” Article 45 prohibits husbands from applying for a divorce “within one year after childbearing or within 6 months after termination of pregnancy” of a woman. Article 46 prohibits domestic violence. Article 51 provides that “[w]omen have the right to child-bearing in accordance with relevant regulations of the state as well as the freedom not to bear any child.”

堕胎与生育权、家庭暴力、性别歧视、财产与继承权

1992年4月3日,全国人民代表大会通过了中华人民共和国妇女权益保障法并于2005年8月28日对此法进行了修正。本法规定妇女在政治的、经济的、文化的、社会的和家庭的生活等各方面享有同男子平等的权利。本法规定了国家预防和制止家庭暴力的责任。第一条阐述了“为了保障妇女的合法权益,促进男女平等, 充分发挥妇女在社会主义现代化建设中的作用,根据宪法和我国的实际情况,制定本法。”第七条规定,中华全国妇女联合会和地方各级妇女联合会依照法律和中华全国妇女联合会章程,代表和维护各族各界妇女的利益,应做好维护妇女权益的工作。第十二条规定, 国家积极培养和选拔女干部,并有适当数量的妇女担任领导成员, 国家重视培养和选拔少数民族女干部。第二十三条规定,各单位在录用职工时,除不适合妇女的工种或者岗位外,不得以性别为由拒绝录用妇女或者提高 对妇女的录用标准。第十三条还规定,劳动(聘用)合同或者服务协议中不得规定限制女职工结婚、生育的内容。第二十三和二十四条规定了男女同工同酬和晋升、晋级等方面男女平等。第二十六条规定,任何单位均应根据妇女的特点,依法保护妇女在工作和劳动时的安全和健康,不得安排不适合妇女从事的工作和劳动,妇女在经期、孕期、产期、哺乳期受特殊保护。第二十七条规定任何单位不得因结婚、怀孕、产假、哺 乳等情形,降低女职工的工资,辞退女职工,单方解除劳动(聘用)合同或者服务协议。第四十五条规定女方在怀孕期间、分娩后一年内或者终止妊娠后六个月内,男方不得提出离婚。第四十六条禁止家庭暴力。第五十一条规定 妇女有按照国家有关规定生育子女的权利,也有不生育的自由。



中华人民共和国宪法(第四十八-四十九条)(The Constitution of the People's Republic of China (Articles 48-49)) (2004)


Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The Constitution of the People’s Republic of China was adopted by the National People’s Congress and promulgated for implementation on December 4, 1982. It has been amended several times, with the most recent amendment occurring on March 14, 2004. Article 48 provides that women and men have equal rights. It states that “[w]omen in the People’s Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women.” Article 49, moreover, provides that “violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited.” English version available here.

就业、包办婚姻与早婚、性别歧视、财产与继承权

第五届全国人民代表大会于1982年12月4日通过中华人民共和国宪法。宪法经过几次修正,其中最近一次修正发生于2004年3月14日。第四十八条规定妇女享有同男子平等的权利。第十四条规定“中华人民共和国妇女在政治的、经济的、文化的、社会的和家庭的生 活等各方面享有同男子平等的权利。国家保护妇女的权利和利益,实行男女同工同酬,培养和选拔妇女干部。” 第四十九条规定禁止破坏婚姻自由,禁止虐待老人、妇女和儿童。



Administration of Estates Act (2002)


Harmful traditional practices, Property and inheritance rights

The AE Act removed inheritance laws unfavorable to widows in civil and registered customary marriages. It recognizes a union contracted according to customary rites, even without formal registration under the Customary Marriages Act of 1951 (currently under Parliamentary review as of July 17, 2019). The AE Act provides that the property of an estate is to be divided by the surviving spouse and the children, regardless of the sex of the children. It also stipulates that a widow whose husband died intestate retains rights to the family’s land upon the death of her husband.



Constitution of Zimbabwe (Amendment No. 20) (2013)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.



Code of Virginia: Property Rights of Married Women (Va. Code § 55-35)


Gender discrimination, Property and inheritance rights

This Virginia law provides that a married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried.



Virginia Human Rights Act (Va. Code Ann. §§ 2.2-3900-03) (2014)


Employment discrimination, Gender discrimination, Property and inheritance rights

Virginia’s Human Rights Act outlines the policy of the Commonwealth to “[s]afeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation,” including in education, real estate, and employment. The Act defines the “unlawful discriminatory practice” and “gender discrimination” as conduct that violates any Virginia or federal statute or regulation governing discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. The terms “because of sex or gender” or “on the basis of sex or gender” or similar terms in reference to discrimination in the Code and acts of the General Assembly include pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities.



Rhode Island Fair Housing Practices Act (Title 34, Chapter 37, General Laws of Rhode Island)


Gender discrimination, LGBTIQ, Property and inheritance rights

The Rhode Island Fair Housing Practices Act prohibits housing practices that discriminate based on gender identity or expression, which is defined to include a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.



23 Pa. C.S.A. § 3701, Domestic Relations - Alimony and Support (1990)


Divorce and dissolution of marriage, Property and inheritance rights

The determination of the nature, amount, and duration of alimony is based on the court’s weighing of several factors. Among the factors considered by the court in its alimony determination are the following: (1) the relative earnings of the parties; (2) the ages and the physical, mental, and emotional conditions of the parties; (3) the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; (4) the expectancies and inheritances of the parties; (5) the duration of the marriage; (6) the contribution by one party to the education, training, or increased earning power of the other party; (7) the extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child; (8) the standard of living of the parties established during the marriage; (9) the relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) the relative assets and liabilities of the parties; (11) the property brought to the marriage by either party; (12) the contribution of a spouse as homemaker; (13) the relative needs of the parties; (14) the marital misconduct of either of the parties during the marriage; (15) the Federal, State, and local tax ramifications of the alimony award; (16) whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 to provide for the party’s reasonable needs; and (17) whether the party seeking alimony is incapable of self-support through appropriate employment.



23 Pa. C.S.A. § 3501, Domestic Relations - Property Division (1990)


Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania is an equitable distribution state, which means the court will “equitably and fairly” divide, distribute, or assign the marital property between the parties, regardless of marital misconduct. “Marital property” generally means all property acquired by either spouse during the marriage. All property acquired by a spouse during their marriage is presumed to be marital property regardless of how title is held. In making its “equitable and fair” division of marital property, the court will weigh numerous factors, which include: the length of the marriage; any prior marriage of either party; the age, health, station, amount, and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the contribution by one party to the education, training, or increased earning power of the other party; the opportunity of each party for future acquisitions of capital assets and income; the sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; the economic circumstances of each party at the time the division of property is to become effective; the federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned; the expense of sale, transfer, or liquidation associated with a particular asset; and whether the party will be serving as the custodian of any dependent minor child(ren).



Communal Land Reform Act (2002)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.



Children's Status Act (2006)


Gender discrimination, Property and inheritance rights

Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights.



Married Persons Equality Act (1996)


Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.



Codice Civil (2019)


Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Italian Civil Code provides for succession and inheritance, each of which require equal treatment of male and female children, including adopted children (Book II, Title I art. 56). In cases in which the conduct of a spouse or co-habitant causes serious physical or mental harm to the other spouse or co-habitant, but the conduct does not constitute a criminal act, the court may issue a family order of protection. A judge may order the party concerned to stay away from the home, the spouse's place of work, the residences of extended family members, and the children's school (Book I, Title IX, art. 342). The judge can also order the intervention of social services or a family mediation center.

Il codice civile italiano disciplina le successioni e l’eredità e dispone il pari trattamento per i figli e le figlie, anche qualora siano adottivi (Libro II, Titolo I, art. 536). Nel caso in cui la condotta di un coniuge o convivente causi seri danni fisici o morali all’altro coniuge o convivente, ma la condotta non sia penalmente rilevante, il giudice può emettere un ordine di protezione familiare. Il giudice può ordinare al coniuge o convivente che ha tenuto la condotta abusiva di non avvicinarsi alla casa, al posto di lavoro del coniuge, al domicilio deii membri della famiglia, e alla scuola dei figli (Libro I, Titolo IX, art. 342 ter). Il giudice può anche disporre l’intervento dei servizi sociali o di un centro di mediazione familiare.



Código de la Familia (Family Code - Law No. 1289 of February 14, 1975) (1994)


Divorce and dissolution of marriage, Property and inheritance rights

Divorce in Cuba results in the dissolution of matrimonial ties and all other effects described in Article 49 of the Family Code. Pursuant to Article 50, divorce can be obtained by judicial decree or notarial deed. Prior to the enactment of the Second Final Disposition of Law No. 154 (“Law No. 154”), divorce in Cuba could only be obtained by means of judicial decree. However, Law No. 154 liberalized the means to obtain a divorce by allowing divorce to be effected by notarial deed. Divorce can be achieved by the mutual agreement of the spouses or when the tribunal confirms that the specific circumstances make divorce in the best interest of the spouses and the children and, as a result, for society. The law considers that a marriage has “lost sense” for the spouses and their children and, hence, for society as a whole, when there are causes that create a situation in which, objectively, marriage is no longer, or cannot in the future be, the union of a man and a woman which allows them to exercise the rights, satisfy the obligations and achieve the objectives mentioned in Articles 24 through 28 (inclusive) of the Family Code. The law makes clear that each of the parties can exercise the option of divorce at any time during which the motivating cause exists. If the spouses have lived together for more than one year or had children during the marriage, the tribunal will award alimony to one of them in the following cases: (1) to the spouse that does not have a paying job and lacks other means of sustenance (this type of alimony is provisional and will be payable by the other spouse for six months if there are no minor children being taken care of by the receiving spouse or for one year if there are such minor children, so that the receiving spouse can obtain a paying job); and (2) to a spouse which as a result of incapacity, age, illness or other insurmountable impediment is unable to work and lacks other means of substance. In this case, the alimony will continue as long as the obstacle persists.

El divorcio en Cuba resulta en la disolución de los lazos matrimoniales y todos los demás efectos descritos en el Artículo 49 del Código de la Familia. En conformidad con el Artículo 50, el divorcio se puede obtener por decreto judicial o escritura notarial. Antes de la promulgación de la Segunda Disposición Final de la Ley No. 154 ("Ley No. 154"), el divorcio en Cuba solo podía obtenerse mediante un decreto judicial. Sin embargo, la Ley No. 154 liberalizó los medios para obtener un divorcio al permitir que se efectúe mediante escritura notarial. El divorcio puede lograrse mediante el acuerdo mutuo de los cónyuges o cuando el tribunal confirma que las circunstancias específicas hacen que el divorcio sea en el mejor interés de los cónyuges y los hijos y, como resultado, para la sociedad. La Ley considera que un matrimonio ha "perdido el sentido" para los cónyuges y sus hijos y, por lo tanto, para la sociedad en su conjunto, cuando hay causas que crean una situación en la que, objetivamente, el matrimonio ya no es, o no puede ser, en el futuro. La unión de un hombre y una mujer les permite ejercer los derechos, cumplir con las obligaciones y lograr los objetivos mencionados en los Artículos 24 a 28 (inclusive) del Código de la Familia. La ley deja claro que cada una de las partes puede ejercer la opción de divorcio en cualquier momento durante el cual exista la causa motivadora. Si los cónyuges han vivido juntos durante más de un año o han tenido hijos durante el matrimonio, el tribunal otorgará la pensión alimenticia a uno de ellos en los siguientes casos: (1) al cónyuge que no tiene un trabajo remunerado y carece de otros medios de sustentarse (este tipo de pensión alimenticia es provisional y será pagadero por el otro cónyuge durante seis meses si el cónyuge que recibe no cuida a los niños menores de edad o por un año si hay tales hijos menores, para que el cónyuge que los recibe pueda obtener un trabajo remunerado); y (2) a un cónyuge que, como resultado de una incapacidad, edad, enfermedad u otro impedimento insuperable, no pueda trabajar y carezca de otros medios de sustancia. En este caso, la pensión alimenticia continuará mientras persista el obstáculo.



Law No. 1 of 1974 Marriage Law (1974)


Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Property and inheritance rights

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.



Domestic Violence Act (2000)


Domestic and intimate partner violence, Property and inheritance rights

Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims. It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases. The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence. Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months. (Section 21)



Revised Family Code (2000)


Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The current family law in Ethiopia provides that there must be, inter alia, consent by both spouses to constitute a valid marriage (Article 6); respect and support between spouses (Article 49); equal rights in the management of the family (Article 50); fidelity owed by both husband and wife (Article 56). This is a substantial step forward in Ethiopian law.



Domestic Violence (Amendment) Act 2017 (2017)


Domestic and intimate partner violence, Property and inheritance rights, Sexual harassment, Stalking

An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding. Pursuant to the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor so police can intervene before further violence happens. The expanded definition of domestic violence will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty. A court can no longer order a survivor to attend reconciliatory counseling with the abuser, which could put the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation program. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy rather than just a specified part of the residence. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates. The amendments also create the Emergency Protection Order (EPO), which helps survivors get protection faster. EPOs are issued by social welfare officers who are easily accessible. Survivors no longer have to make a police report to get an EPO, which is valid for seven days.



Social and Economic Development Policy Act (2006)


Abortion and reproductive health rights, Employment discrimination, Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

This Act provides policies that address the improvement of the quality of life of individuals and the reduction of the growth rate of the population. (§§ 1-3). §7 sets forth that the Ministry of Gender Development and women’s organizations shall implement gender policy to achieve gender equity, specifically, to increase women’s participation in the work force and in political institutions, to protect women’s property rights in statutory law and customary practices, and to prevent various forms of violence against women, including female genital mutilation, early marriage, teenage pregnancy. §5 sets forth that the family planning facilities shall actively involve the participation of women in deciding family size. §10 states that marriage of young girls before 18 years old, and marriage of boys before 21 years old should be discouraged.



Equal Rights of the Customary Marriage Law of 1998 (1998)


Domestic and intimate partner violence, Dowry-related violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

This law defines “customary marriage” as the marriage between a man and a woman performed according to the tribal tradition of their locality and provides that a wife’s rights and duties within a customary marriage are the same as a wife’s rights and duties in a statutory marriage (a statutory marriage is a civil marriage license under the Domestic Relations Law). §2.1 provides that all customary marriages are legal, and the duties and liabilities of the statutory wife shall be accorded to all customary wives. §2.2 provides that the husband shall not recover the dowry from the wife or her parents; while §2.3 provides that a customary wife receives one-third of her husband’s property upon marriage. §2.6 provides that a customary wife has exclusive right to the properties she receives before or during the marriage, but she needs the husband’s consent to conduct business in her own name. §2.6 also states, however, that if the husband attempts to control his wife’s property he will have committed theft of property and he will be subject to a fine for such theft. §2.9 establishes that the minimum age for a tribal woman to enter into a customary marriage is 16, while §2.10 provides that the parents shall not choose the husband for their daughter against her will. Various sections provide for the rights of women on the event of her husband’s death: §3.2 states that a widow in a customary marriage is entitled to one-third of her deceased husband’s property; §3.3 provides that the widow has the freedom to enter into a new marriage upon the death of her husband; §3.5 provides that the widow has the right to petition to the probate court to administer the property of the decedent; §3.4 prohibits the husband’s family from compelling a widow to marry her deceased husband’s relative; and §3.7 establishes that the living spouse retain the right to custody of the minor children.



Civil Code of Iran (Inheritance) (1969)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

With regards to inheritance law (Arts. 906-915), a widow inherits less than a widower in Iran. A widow inherits one-quarter of her deceased husband’s property if the deceased husband left no children behind, and one-eighth if he did leave children behind. In contrast, a surviving husband inherits half of his deceased wife’s property if she left no children behind and one-quarter if she did leave children behind (Art. 913). Consistent with this pattern, under Iranian Civil Code Article 907, sons inherit twice as much as daughters when a parent is deceased.



Civil Code of Iran (Citizenship) (1969)


Gender discrimination, Property and inheritance rights

Article 976 states that children born to Iranian fathers are considered Iranian subjects. No clause exists extending the same rights to children born of Iranian mothers where the child’s father is not Iranian. This provision demonstrates that Iranian women cannot pass on their Iranian nationality to their children.



Civil Code of Iran (Marital Duties) (1969)


Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

According to Iranian law, the husband is the exclusive holder of the position of “head of the family” (Art. 1105). As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times. This is the tamkin (submission) requirement of Sharia law. If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114). If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling. If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).



Gender Law of 10 May 2007 (2007)


Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


Equal Opportunity for Women Act (Legislative Decree 34-2000) (2000)


Employment discrimination, Gender-based violence in general, Property and inheritance rights

The Equal Opportunity for Women Act (the “Act”), enacted by this decree 34-2000, eliminates “all forms of discrimination against women” and guarantees equality in the eyes of the law and in the areas of family, health, education, culture, work, social security, credit, and land ownership. Moreover, the Act promotes participation by women in decision-making within the power structure and expressly states that women are eligible to run for public office. This law is significant because it was intended to create and expand the scope of representation and participation of Honduran women in civil society.

La Ley de Igualdad de Oportunidades para la Mujer (la "Ley"), promulgada por este decreto 34-2000, elimina "todas las formas de discriminación contra la mujer" y garantiza la igualdad de género ante la ley y en las áreas de la familia, la salud, la educación, Cultura, trabajo, seguridad social, crédito y propiedad de la tierra. Además, la Ley promueve la participación de las mujeres en la toma de decisiones dentro de la estructura de poder y establece expresamente que las mujeres son elegibles para postularse para cargos públicos. Esta ley es importante porque tiene la intención de crear y ampliar el alcance de la representación y participación de las mujeres hondureñas en la sociedad civil.



Succession Act (Amendment) Decree 22/72 of 1972 (1972)


Gender discrimination, Property and inheritance rights

Uganda allows for customary law to govern many situations, but the Succession Act restricts their applicability in inheritance cases. It enshrines women’s right to inherit from husbands, but also privileges men because 1) the property of a married woman who dies intestate automatically will go to her spouse, unlike a man who dies intestate; 2) the matrimonial home will go to the legal heir, the determination of which prioritizes male relatives; 3) a widow (or widows in polygamous marriages, who must share) may only inherit 15% of her husband’s estate; and 4) maintenance and occupancy rights of widows terminate if they remarry.

Original Act (1906)



Land Act of 1998 (amended 2004, 2010) (1998)


Property and inheritance rights

The Land Act, after amendments, protects a spouse’s occupancy of family land and requires their consent for any transaction involving the land on which they live or use for sustenance, but does not provide for automatic co-ownership between spouses. Any decision that unconstitutionally disfavors the property rights of women and children is invalid. The Act also requires that land management mechanisms have at least 1/3 female members.

2004 Amendments (spousal rights added)

2010 Amendments



Domestic Case Law

Sande v. Sande High Court of Malawi (2009)


Divorce and dissolution of marriage, Property and inheritance rights, Sexual harassment, Stalking

The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship. After she started a business to provide for herself, the respondent employed his former wife’s relatives to “spy and scorn her to leave the house.” The matter was brought to their religious leader, who ordered the couple to three months’ separation to see whether reconciliation was possible. During that period, the respondent lived with his former wife, admitted to other extra-marital relationships, continued to harass the petitioner for conjugal relations, and declared that he did not want her as his wife, which he believed should have legally relieved him of their marriage. The petitioner subsequently applied for divorce in the High Court. The respondent contested adjudicating the matter before the High Court, arguing (i) that the divorce should have been adjudicated by religious leaders rather than a secular court and (ii) that he believed that the marriage was already dissolved given his declaration to his religious leader that he no longer wanted to be married (although no witnesses testified to hearing the respondent pronounce the “talaq” against his wife). The High Court emphasized that courts do not have a monopoly on divorce; for example, couples can divorce by mutual agreement at custom before village civic authorities or other tribunals. However, even in such situations, if one party is wronged or does not consent to the divorce, that party can seek resolution in a secular court. The High Court concluded that the respondent’s alleged “divorce” was not valid, as the respondent had violated the tenets of his faith with his extramarital affairs, harassment of his estranged wife, and lies to lure her into the marriage. Emphasizing the equal status of husband and wife under the Constitution, the Court held that the respondent’s summary declaration of a dissolved marriage in this case, especially as it was unjustified, did not conform to the principles of justice, equality, and morality, and granted the petitioner the divorce under law.



Cправа № 509/3010/19 (Case No. 509/3010/19) цивільного суду у складі Верховного Суду (Civil Cassation Court within the Supreme Court of Ukraine) (2022)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant sued his ex-wife, the respondent, regarding the division of property acquired during the marriage as the ex-spouses’ joint property. The appellant noted that during their marriage, the spouses accumulated funds that were kept in the respondent’s bank account. However, immediately after the divorce, the respondent independently managed the funds and bought an apartment. The appellant’s main argument was that, according to Ukrainian family law, the dissolution of marriage does not terminate the right of joint co-ownership of property acquired during the marriage. When the spouses’ jointly owned property is divided, each spouse shall receive an equal share, unless otherwise envisaged by the marriage contract. Thus, the appellant argued that half of the money belonged to him. The respondent claimed that the money was her private property because it was a gift from her friend from the Slovak Republic. The first-instance court satisfied the appellant’s claim, noting that, according to Ukrainian legislation, the deed of gift agreement should have been, but was not, notarized, rendering it null and void. Consequently, the money was the joint property of the spouses. The Court of Appeal overturned this decision. The Supreme Court also supported the position that the court of first instance erroneously satisfied the husband's claim because, as a gift from a citizen of the Slovak Republic, the Ukrainian courts should apply Slovak law, which does not require notarization of the deed of gift agreement. Thus, the Supreme Court concluded that the money was the woman's personal property and could not be divided.

Скаржник звернувся до суду з позовом до своєї колишньої дружини (відповідача) про поділ майна, нажитого за час шлюбу як спільної сумісної власності подружжя. Скаржник зазначив, що за час шлюбу подружжя накопичило кошти, які зберігалися на банківському рахунку відповідача. Проте, одразу після розірвання шлюбу, відповідач самостійно розпорядилась коштами та придбала квартиру. Основним аргументом скаржника було те, що відповідно до сімейного законодавства України розірвання шлюбу не припиняє права спільної сумісної власності на майно, набуте за час шлюбу. При поділі майна, що є спільною сумісною власністю подружжя, вважається, що частки кожного із подружжя є рівними, якщо інше не встановлено домовленістю між ними або договором. Таким чином, скаржник стверджував, що половина грошей належить йому. Відповідач стверджувала, що гроші є її приватною власністю, оскільки це подарунок її друга із Словацької Республіки. Суд першої інстанції задовольнив позов скаржника, зазначивши, що відповідно до законодавства України договір дарування мав бути (проте не був) нотаріально посвідчений, що робить його нікчемним. Отже, гроші були спільною власністю подружжя. Апеляційний суд скасував це рішення. Верховний Суд також підтримав позицію про те, що суд першої інстанції помилково задовольнив позов чоловіка, оскільки щодо подарунку громадянина Словацької Республіки українські суди мають застосовувати законодавство Словаччини, яке не вимагає нотаріального посвідчення договору дарування. Таким чином, Верховний суд дійшов висновку, що гроші є особистою власністю жінки і не підлягають розподілу.



Cправа № 658/2391/18 (Case No.658/2391/18) цивільного суду у складі Верховного Суду (Civil Cassation Court within the Supreme Court of Ukraine) (2021)


Property and inheritance rights

The appellant sued to establish co-residence with the deceased, a man with whom she lived for more than five years but never married. The claim was related to the fact that the man died without a will, so inheritance defaulted to take place in order of precedence according to Ukrainian legislation. Without establishing co-residence, the appellant had no legal right to inherit at all, but establishing co-residence with the deceased would give her the opportunity to inherit the property as a fourth-line heir, as she lived with the deceased for at least five years. However, the deceased's niece also claimed her rights to his property including land plots and a residential building. The plaintiff argued that the niece should not inherit because she did not take part in the material support of her uncle, carry out his burial, nor take an interest in his health. The first-instance court partially satisfied the appellant’s claim and established her co-residence with the deceased man without marriage. At the same time, the court assumed that the appellant provided long-term care and assistance to the deceased, who was unable to care for himself. The appellate court overturned this decision, finding that there was no evidence to prove that the appellant lived with the deceased as a family, and that they were connected by common life, joint farming, etc. The Supreme Court left this decision unchanged, stating that the fact that the appellant and the deceased lived at the same address did not prove that they lived as a family. Therefore, according to the Court, the appellant had no right to inherit the deceased’s property. This case is important because it shows how women’s property and inheritance rights are unprotected outside of registered marriage, and that it is very difficult to prove living as one family in a Ukrainian court.

Скаржниця пред'явила позов про встановлення спільного проживання з померлим, чоловіком, з яким вона прожила більше п'яти років, але так і не вийшла заміж. Позов був пов’язаний з тим, що чоловік помер без заповіту, тому спадкування мало відбуватися за законом (в порядку черговості) згідно із законодавством України. Без встановлення спільного проживання, скаржниця взагалі не мала законного права на спадкування, але встановлення спільного проживання з померлим дало б їй можливість успадкувати майно як спадкоємець четвертої черги, оскільки вона проживала з померлим принаймні п'ять років. Однак, племінниця померлого також заявила свої права на його майно, зокрема земельні ділянки та житловий будинок. Позивач стверджувала, що племінниця не повинна приймати спадщину, оскільки не брала участі в матеріальному забезпеченні свого дядька, не здійснила його поховання, не цікавилася його здоров'ям. Суд першої інстанції частково задовольнив позов скаржниці та встановив її спільне проживання з померлим без шлюбу. Водночас, суд виходив з того, що скаржниця надавала тривалий догляд та допомогу померлому, який був не в змозі обслуговувати себе сам. Суд апеляційної інстанції скасував це рішення, встановивши відсутність доказів того, що скаржниця проживала із померлим однією сім’єю і, що вони були пов’язані спільним побутом, вели спільне господарство тощо. Верховний Суд залишив це рішення без змін, вказавши, що той факт, що скаржниця і померлий проживали за однією адресою, не доводить, що вони проживали однією сім'єю. Таким чином, на думку Суду, скаржниця не мала права успадкувати майно померлого. Ця справа є важливою, тому що показує, що майнові та спадкові права жінок поза зареєстрованим шлюбом є незахищеними, а також те, що в українському суді досить важко довести факт проживання однією сім’єю.



Cправа №128/2294/17 (Case No. 128/2294/17) цивільного суду у складі Верховного Суду (Civil Cassation Court within the Supreme Court of Ukraine) (2021)


Domestic and intimate partner violence, International law, Property and inheritance rights

The plaintiff sued her ex-husband and asked the court to evict her ex-husband, the defendant-appellant. The plaintiff owned half of the house and the other half of the house belonged to her brother. After the divorce, the defendant-appellant lived in the same house without becoming a joint owner. The defendant-appellant systematically caused moral and physical suffering to the plaintiff and violated the rules of cohabitation. The first-instance court rejected the plaintiff’s claim, noting that a former family member of the owner of the house cannot be evicted as this could be interference with the right to housing, guaranteed by the Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms. The appellate court overturned this decision and granted the plaintiff's the claim because the defendant-appellant systematically committed domestic violence and his continued residence in the house violated the interests of the owner of the house. The Supreme Court left this decision unchanged, drawing attention to the fact that the evidence indicated that for a long time the defendant-appellant systematically violated the rules of cohabitation with the plaintiff and her child, abused alcohol, and used psychological and physical violence, which made it impossible to live with him. In view of the above, in order to prevent further cases of bullying, intimidation, and violence against the plaintiff and her child, the Supreme Court concluded that there were grounds for granting the plaintiff’s claim and terminating the defendant-appellant's right to use the disputed housing by evicting him. Specifically, the Court found that the interference with the right to housing was proportionate and pursued a legitimate aim.

Позивач пред'явила позов до свого колишнього чоловіка та просила суд виселити її колишнього чоловіка – відповідача (скаржника). Половина будинку належала позивачу, а інша половина будинку належала її братові. Після розірвання шлюбу відповідач (скаржник) проживав із позивачем в одному будинку, який не був їх спільною сумісною власністю. Відповідач (скаржник) систематично завдавав позивачу моральні та фізичні страждання та порушував правила спільного проживання. Суд першої інстанції відхилив позов позивача, зазначивши, що колишній член сім’ї власника будинку не може бути виселений, оскільки це може бути втручанням у право на житло, гарантоване статтею 8 Конвенції про захист прав людини та основоположних свобод. Суд апеляційної інстанції скасував це рішення та задовольнив позов, оскільки відповідач (скаржник) систематично вчиняв насильство в сім’ї і його подальше проживання в будинку порушувало інтереси власника будинку. Верховний Суд залишив це рішення без змін, звернувши увагу на те, що наявні докази вказують на те, що відповідач (скаржник) протягом тривалого часу систематично порушував правила спільного проживання з позивачем та її дитиною, зловживав алкоголем, застосовував психологічне та фізичне насильство, що зробило проживання з ним неможливим. Враховуючи викладене, з метою запобігання подальшим випадкам булінгу, залякування та насильства щодо позивача та її дитини, Верховний Суд дійшов висновку про наявність підстав для задоволення позову позивача та припинення права відповідача (скаржника) на користування спірним житлом шляхом його виселення. Зокрема, Суд визнав, що втручання у право на житло було пропорційним і переслідувало законну мету.



Cправа №310/6618/17 (Case No. 310/6618/17) цивільного суду у складі Верховного Суду (Civil Cassation Court within the Supreme Court of Ukraine) (2021)


Divorce and dissolution of marriage, Property and inheritance rights

The plaintiff sued his ex-wife, the appellant, and requested recognition that a piece of real estate was his private property. The plaintiff noted that he and his wife were in a registered marriage for a certain period. The plaintiff made money as an individual entrepreneur (in Ukraine, this term means an individual that owns his or her business and possesses all the profit). While running his business, he acquired real estate and registered title. The plaintiff invested his own money in this property. The appellant believed that due to the fact that the plaintiff acquired the property during their marriage, the real estate was the joint property of the spouses and should be split between them. Rejecting the appellant’s arguments, the court of first instance concluded that, as the plaintiff acquired the disputed property using his own money, the property belonged only to him, as she did not prove that the property was acquired as a result of their joint work or that her funds were invested in its acquisition. The Court of Appeal left this decision unchanged. The Supreme Court slightly changed the motivational part of the decisions of the first-instance court, as well as Court of Appeal, accepting that the property of the individual entrepreneur can be joint property of the spouses, provided that it was either bought by the spouses together, or invested in by both spouses. Considering that the appellant did not prove that the property was acquired during their marriage, nor that they both invested in the property, the Court held that it belonged only to the plaintiff.

Позивач подав до суду на свою колишню дружину (скаржницю) та просив визнати, що нерухоме майно є його приватною власністю. Позивач зазначив, що певний період вони з дружиною перебували в зареєстрованому шлюбі. Позивач заробляв гроші як фізична особа-підприємець (в Україні під цим терміном розуміється фізична особа, яка є власником свого бізнесу та володіє всім прибутком). Під час ведення бізнесу він придбав нерухомість і зареєстрував право власності на неї. Позивач інвестував свої власні кошти в це нерухоме майно. Скаржниця вважала, що у зв'язку з тим, що Позивач набув майно під час шлюбу, нерухоме майно є спільною сумісною власністю подружжя і підлягає розподілу між ними. Суд першої інстанції відхилив доводи скаржниці та дійшов висновку, що, оскільки позивач придбав спірне майно за власні кошти, це майно належить лише йому, оскільки вона не довела, що це майно було набуте в результаті їх спільної праці або, що її кошти були вкладені в його придбання. Апеляційний суд залишив це рішення без змін. Верховний Суд дещо змінив мотивувальну частину рішення суду першої інстанції, а також апеляційного суду, вказавши, що майно фізичної особи-підприємця може бути спільною сумісною власністю подружжя за умови, що воно було придбано обома подружжя або в нього було інвестовано кошти обох подружжя. Зважаючи на те, що скаржниця не довела ні того, що це майно було придбано під час їхнього шлюбу, ні того, що вони обидва інвестували у це майно, Суд постановив, що воно належало лише позивачу.



справа №766/13927/20-ц (Case No.766/13927/20-ц) цивільного суду у складі Верховного Суду (Civil Cassation Court within the Supreme Court) (2021)


Domestic and intimate partner violence, International law, Property and inheritance rights

The appellant applied to the court for a restraining order against her son (in Ukrainian legislation, this term means a judicially established measure that temporarily restricts rights or imposes obligations on a perpetrator of domestic violence and is aimed at ensuring the victim's safety). The appellant wanted the restraining order because her son, who lived in the same apartment with her, consumed alcoholic beverages and narcotics, and verbally insulted, humiliated, intimidated, threatened to kill her. The appellant asked the court to issue a six-month restraining order imposing certain obligations on her son, including the obligation to leave her place of residence. The court of first instance granted the appellant’s application in part, but the court did not impose the restrictive measure related to her son's access to housing. In the court’s opinion, the obligation to leave the appellant’s place of residence could violate the son's right to own and use housing and therefore such a measure was not proportionate under the established circumstances. The Court of Appeal left this decision unchanged. The appellant filed a cassation appeal to the Supreme Court, claiming that the courts of previous instances did not fully assess the risk of her son continuing to commit, or re-committing, domestic violence. The appellant argued that this case did not involve deprivation of property rights, but only temporary restrictions. Referring to the practice of the European Court of Human Rights, the Supreme Court concluded that in this case there was indeed a justified risk of continuation or repeated perpetration of domestic violence, the occurrence of severe or particularly severe consequences for the victim, and such risk was real. This case is significant because it found that courts should prioritize the safety of the victim rather than the property rights of the perpetrator. Under such circumstances, the Supreme Court prohibited the woman's son from approaching within 100 meters of their joint residence.

Скаржниця звернулася до суду із заявою про видачу обмежувального припису щодо її сина (в українському законодавстві під цим терміном розуміється встановлений у судовому порядку захід тимчасового обмеження прав чи покладення обов’язків на особу, яка вчинила домашнє насильство, спрямований на забезпечення безпеки постраждалої особи). Скаржниця хотіла, аби суд видав обмежувальний припис, оскільки її син (який проживав з нею в одній квартирі) вживав алкогольні напої та наркотики, погрожував їй вбивством, використовував щодо неї словесні образи, приниження та залякування. Скаржниця просила суд видати обмежувальний припис строком на шість місяців із покладенням на її сина певних обов’язків, зокрема зобов’язання залишити місце проживання. Суд першої інстанції частково задовольнив заяву скаржниці, але суд не застосовував обмежувальний захід до її сина, який стосувався доступу до житла. На думку суду, зобов’язання залишити місце проживання скаржниці могло порушити право сина на володіння та користування житлом, а тому такий захід не був пропорційним за встановлених обставин. Апеляційний суд залишив це рішення без змін. Скаржниця подала касаційну скаргу до Верховного Суду, посилаючись на те, що суди попередніх інстанцій не в повній мірі оцінили ризик продовження або повторного вчинення її сином домашнього насильства. Скаржниця стверджувала, що в цій справі не йдеться про позбавлення права власності, а лише про тимчасові обмеження. Посилаючись на практику Європейського суду з прав людини, Верховний Суд дійшов висновку, що в даному випадку дійсно існував обґрунтований ризик продовження або повторного вчинення домашнього насильства, настання тяжких чи особливо тяжких наслідків для потерпілої і такий ризик був реальним. Ця справа є важливою, оскільки в ній було встановлено, що суди повинні надавати пріоритет безпеці жертви, а не майновим правам кривдника. За таких обставин, Верховний Суд заборонив синові жінки наближатися на відстань ближче 100 метрів до їхнього спільного помешкання.



T. (D.) v T. (C.) (2002)


Divorce and dissolution of marriage, Property and inheritance rights

In this case, the Supreme Court articulated its view of the nature of marriage and how the value of the contributions of the spouses should relate to property entitlements under Irish law. Referencing the Family Law (Divorcer) Act 1996, the Supreme Court noted that the legislature had not made any mandatory requirements regarding the division of assets in divorce and judicial separation cases; discretion had been left to the court to consider what would be the best and most just resolution of the case at hand. Appellate courts should, to a certain degree, give latitude to the discretion of the trial judge in these matters. The parties had a “turbulent” marriage. During the marriage, the respondent-wife: sold her pre-marital home (the proceeds of which were used as marital property), significantly pulled back from her career as a general practitioner focus on the marriage and couple’s children, and worked as a receptionist for her husband’s medical practice to save him money. The applicant-husband had affairs with multiple women, then filed for divorce when he had a child with another woman and decided to marry her. He transferred the family’s house, including some of the art and furnishings, to the respondent and paid about ₤400 per week in child support, which the High Court ordered increased to ₤800 per week. The Court stated that courts should incorporate the value of a spouse’s work performed at home as well as the factors listed in the Family Law Act (including but not limited to income, earning capacity, property and other financial resources, any physical or mental disability of either spouse, past and future contributions each spouse has made – or is likely to make – to the family welfare, and the conduct of the spouses). In this case, the applicant-husband had assets of at least ₤14 million and a current salary of about ₤210,000. The respondent-wife had about ₤1 million and uncertain salary; she requested between 33-50% of the applicant’s assets and a pension adjustment order. The High Court granted the respondent ₤5 million to be paid over 18 months and 55% of the applicant’s pension. On appeal, the applicant asked the Court to give greater weight to, among other factors, the facts (i) that he transferred 30% of his assets to the respondent when the marriage broke down and (ii) that he would have new responsibilities in his next marriage. The Court was of the view that ‘equality’ did not apply in this context, but that the courts are obliged to make ‘proper provision’ for both spouses having regard to the circumstances. In this case, the Court affirmed that the respondent was entitled 38% (approximately ₤5 million) of the total net assets, but revised the pension adjustment to 49-51% in favour of the respondent.



Dėl vaikų išlaikymo išmokų mokėjimo sąlygos nuolat gyventi Lietuvoje Nr. 10/2018 (On the Condition of Permanent Residence in Lithuania for the Payment of Child Maintenance Benefits) Konstitucinis Teismas (Constitutional Court) (2018)


Divorce and dissolution of marriage, Property and inheritance rights

This case considers conformity of constitutional provisions mandating that the State shall ensure, foster, and protect fatherhood, motherhood, and childhood, with the Children’s Maintenance Fund’s requirement that the applicant and the child must permanently reside in Lithuania to receive benefits. The petitioner argued that if the applicant and the child would lose their state-guaranteed support upon leaving Lithuania, it would violate the right to freedom of movement and the State’s duty to prioritize child interests. The Court clarified that the applicant and the child must permanently reside within the Country at the moment of the application for benefits but can move to another State later without the termination of benefits; therefore, the Law of the Fund does not contradict the Constitution. English translation available here.

Šioje byloje nagrinėjamas konstitucinių nuostatų, įpareigojančių valstybę užtikrinti, puoselėti ir saugoti tėvystę, motinystę ir vaikystę, atitikimas Vaikų išlaikymo fondo reikalavimui, kad pareiškėjas ir vaikas nuolat gyventų Lietuvoje, norint gauti išlaikymo išmokas. Pareiškėjas teigė, kad jeigu jie ir vaikas išvykęs iš Lietuvos prarastų valstybės garantuojamą paramą, tai pažeistų jų judėjimo laisvę ir valstybės pareigą teikti pirmenybę vaiko interesams. Teismas išaiškino, kad pareiškėjas ir vaikas prašymo skirti išmoką pateikimo metu turi nuolat gyventi Lietuvoje, tačiau vėliau gali persikelti į kitą valstybę neprarasdami išmokos, todėl Vaikų išlaikymo fondo įstatymas neprieštarauja Konstitucijai.



Dėl Valstybinės šeimos politikos koncepcijos Nr. 21/2008 (On the Concept of State Family Policy) Konstitucinis Teismas (Constitutional Court) (2011)


Gender discrimination, LGBTIQ, Property and inheritance rights

Amongst other things, this case sets out that the constitutional concept of family is not only derived from the institution of marriage. According to the Court, a family formed on the basis of “continuous emotional affection, mutual understanding, responsibility, respect, co-parenting, and the like” is also protected by the Constitution. The significance of such family definition for same-sex partners was proven years later by the Constitutional Court case No. 16/2016. The Court affirmed that the State must not discriminate based on gender and/or sexual orientation in granting Residence Permits to foreign nationals reuniting with their spouses, even if same-sex marriage or same-sex partnership is not legal in Lithuania.

Šioje byloje nustatyta, kad konstitucinė šeimos samprata kyla ne tik iš santuokos institucijos. Pasak Teismo, šeima, sudaryta remiantis „pastoviais emocinio prieraišumo, tarpusavio supratimo, atsakomybės, pagarbos, bendro vaikų auklėjimo ir panašiais ryšiais“ taip pat yra saugoma Konstitucijos. Tokio šeimos apibrėžimo reikšmė tos pačios lyties partneriams po daugelio metų įrodyta byloje Nr. 16/2016, kurioje Konstitucinis Teismas patvirtino, kad valstybė negali diskriminuoti dėl lyties ir (ar) seksualinės orientacijos, suteikdama užsieniečiui sutuoktiniui leidimą laikinai gyventi Lietuvos Respublikoje šeimos susijungimo atveju, net jei tos pačios lyties asmenų santuokos ar partnerystė Lietuvoje nėra teisėta.



Dėl bažnytinės santuokos registracijos Nr. 6/94 (On Marriages Registered in Church) Konstitucinis Teismas (Constitutional Court) (1994)


Divorce and dissolution of marriage, Property and inheritance rights

This case considers conformity of a Constitutional provision declaring that the State recognizes marriages registered in church with the Matrimonial and Family Code, which states that only civil marriages have legal effect. A widow was refused inheritance from her deceased spouse because their marriage was not contracted in a civil office before the passage of the Constitution. The Court affirmed that Constitutional provisions could not be applied retroactively, and thus only after 1992 when the legislation came into force can a church marriage be recognized by the State. English translation available here.

Šioje byloje nagrinėjamos konstitucinės nuostatos, skelbiančios, kad valstybė pripažįsta bažnyčioje įregistruotas santuokas, atitikimas santuokos ir šeimos kodeksui, kuriame teigiama, kad teisinę galią turi tik civilinės santuokos. Našlei buvo atsisakyta išduoti paveldėjimo teisės liudijimą, nes santuoka su vėlioniu nebuvo sudaryta civilinės metrikacijos institucijose iki Konstitucijos priėmimo. Teismas patvirtino, kad konstitucinės nuostatos negali būti taikomos atgaline data, todėl tik po 1992 m., kai įstatymas įsigaliojo, valstybė gali pripažinti bažnytinę santuoką.



司法院大法官會議第452號解釋 (J.Y. Interpretation No. 452) Constitutional Court of Taiwan (1998)


Gender discrimination, Property and inheritance rights

Article 1002 of the Civil Code in 1998 stipulated," The residence of the wife shall be that of the husband…; nevertheless, in case there is an agreement that the residence of the husband shall be that of the wife…, the agreement shall be upheld." This article was against the principle of equality and proportionality of the Constitution. Though the article allows the husband or wife to make an agreement about their residence, it failed to take into consideration that if a husband refuses to make such an agreement with his wife or if an agreement cannot be made, the wife has no choice but to accept her husband's domicile as hers. This article also failed to consider the wife's freedom to choose her residence; thus, it is unconstitutional.

1998年民法第1002條規定:「妻以夫之住所為住所…,但約定夫以妻之住所為住所…,從其約定。」此一規定因違反平等原則及比例原則而違憲。雖該條賦予夫妻一方得另行約定住所,但如夫拒絕為約定或雙方協議不成時,妻即須以夫之住所為住所。該條規定亦未考慮妻應有選擇住所之自由,故而違憲。



Quartson v Quartson Supreme Court (2012)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

This divorce case involved a couple that was married for 25 years. The petitioner-wife filed for divorce due to unreasonable behavior and adultery. She requested custody of their minor child, property rights as the court deemed fit, and that the respondent-husband vacate the marital home, pay a dissolution settlement, and cover court costs. The respondent, who was the family’s primary source of financial support, funded the construction of the parties’ marital home. Despite her inability to contribute financially, the wife oversaw construction of the home and took care of the couple’s children while the husband was away for years, both for work and in prison. The Supreme Court determined that, despite her failure to contribute financially to the parties’ acquisition of the marital home, the wife’s in-kind contributions to the family entitled her to a share of the marital home. Specifically, the court held that “principles of general fundamental human rights require that a person who is married to another and generally supervises the home, such that the other partner has a free hand to engage in economic activities, must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.”



Decision of the Plenum of the Supreme Court No. 5 dated 22 June 2000 on Judicial Practice on Application of the Legislation when Considering Cases on the Termination of a Marriage Пленума Верховного Суда (Supreme Court of Belarus) (2000)


Divorce and dissolution of marriage, Property and inheritance rights

The Plenum of the Supreme Court held that divorce based on the claim of one spouse may be granted by the courts if “the preservation of the family has become impossible.” The passing of the three-month reconciliation period and the claim by one spouse is not enough for such a determination, rather, the courts must comprehensively analyze the relationship between the spouses, the motives for the claim for divorce, and the reasons for discord between the spouses with the participation of both spouses. The Plenum further held that if a court determines that there is evidence of the possibility of preserving the family, such as underage children, the duration of the marriage, the Court may, based on the request of one or both spouses, or on its own initiative, postpone the granting of the divorce and grant an additional six-months reconciliation period. The Plenum also determined that because divorce is not allowed during pregnancy and before the child reaches three years of age, unless the other spouse consents or certain other circumstances are established according to the Marriage and Family Code Art. 35, the husband is not permitted to bring a claim for divorce during this time. The Plenum further held that the common joint property of the spouses subject to division at the termination of a marriage is any movable and immovable property that can be the object of a person’s property rights acquired during the marriage. If it is established that one of the spouses alienated the common joint property against the will of the other spouse or contrary to the interest of the family, or hid property, such property or the value of it shall be taken into account at the division of property. If the spouses stopped running a common household before the division of property, only the property acquired during the existence of a common household shall be the joint common property subject to division. Property that was acquired during marriage through the personal funds of one of the spouses, property which belonged to one of the spouses before marriage, property acquired during marriage by gift or inheritance, or items “for individual use,” such as clothing, with the exception of jewelry and other luxury items, shall not be considered common joint property.



Decision of the Constitutional Court of the Republic of Belarus 28 December 2011 No. P-672/2011 Конституционного Суда (Constitutional Court of Belarus) (2011)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The Constitutional Court reviewed the constitutionality of the law “on Amendments and Additions to the Code of the Republic of Belarus on Marriage and Family” dated 2011. The Court noted that the Constitution protects marriage, family, motherhood, fatherhood, and childhood. It further noted that the protection and strengthening of the family institution is an integral part of the State’s social policy and held that amendments to the Code are aimed at protecting the family. The Court further noted that the Constitutional guarantee on the equality of both spouses means equal rights and obligations, including the obligation, financially, to support the other spouse. This constitutional guarantee is implemented by the amendments to the Code as it expands the list of circumstances when one spouse can apply to a court for maintenance, including when that spouse is caring for a disabled common child. The Court also held that amendments to the Code establishing that certain contracts between the spouses, such as a prenuptial agreement and agreement on payment of alimony if they contain conditions regarding immovable property, have to be registered with the appropriate State organs, are aimed at ensuring legal certainty and consistency of legal regulation of marriage and family relationships. The Court held that the law “on Amendments and Additions to the Code of the Republic of Belarus on Marriage and Family” dated 2011 was constitutional as it was aimed at strengthening marriage and family institutions, and increasing the spouses’ awareness of their rights and responsibilities.



司法院大法官會議第457號解釋 (J.Y. Interpretation No. 457) Constitutional Court of Taiwan (1998)


Gender discrimination, Property and inheritance rights

The Regulations for the Handling of the Government Owned Housing and Farmlands Vacated by Married Veterans after Their Hospitalization, Retirement or Death distributes plots of state farmland to veterans. Section 4-III of the Regulations provides, “If the surviving spouse of the deceased veteran remarries but without issue or has only daughter(s), the land and housing shall be reclaimed unconditionally upon the marriage of the daughter(s); and the rights of the veteran may be inherited by his son, if any.” The Court explained that the government can allow a veteran’s surviving dependents to continue using and farming the state land distributed to veterans, and can extend the term “dependents” to a veteran’s children. In doing so, however, the government should consider the children’s ability to earn a living and cultivate the land, and must keep in mind the principle of gender equality enshrined in Article 7 of the Constitution and Article 10-VI of the Amendments to the Constitution. The Court held that Section 4-III of the Regulations violates this principle because it limits the right of inheritance of a deceased veteran to the veteran’s son without regard to the son’s ability or marital status. Thus, the Court held that Section 4-III of the Regulations discriminates against a specific group of women on the premise of marital status and sex. As such, the Court held that the government must revise Section 4-III of the Regulations to remove the discriminatory provision.

行政院國軍退除役官兵輔導委員會發布之「本會各農場有眷場員就醫、就養或死亡開缺後房舍土地處理要點」第4條第3項規定:「死亡場員之遺眷如改嫁他人而無子女者或僅有女兒,其女兒出嫁後均應無條件收回土地及眷舍,如有兒子准由兒子繼承其權利」。法院解釋認為,政府可以允許退除役官兵的遺眷繼續使用和耕種分配給該退除役官兵的國有土地,並可以將「遺眷」一詞擴大解釋至該退除役官兵的子女。然而,於此同時,政府應考慮該子女的謀生和耕種能力,並且必須謹記憲法第7條和憲法增修條文第10條第6項規定的性別平等原則。法院認為,該要點第4條第3項規定違反了此一原則,因為其將已故退除役官兵的繼承權限制在退伍軍人的兒子身上,且不考慮兒子的謀生和耕種能力或婚姻狀況。因此,法院認為,該要點第4條第3項規定以婚姻狀況和性別為前提,歧視特定婦女群體。於此情況下,法院認為,政府必須修正該要點第4條第3項規定以刪除歧視條文。



平成16(受)1968 (2004 (Ju) No. 1968) 最高裁 (Supreme Court of Japan) (2006)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

Two female members of a certain local community which have collective property rights to a common land (called a "common" or a "hamlet") petitioned the court to decide the unconstitutionality of a traditional practice which determined membership and property rights within the community. The court held that this custom which excludes female descendants who married outside of the community, is "contrary to public order and therefore null and void" under Article 90 of the Civil Code. The court held that "the male descendant requirement discriminates against female descendants only because they are females" and it is unreasonable and against the constitutional principle of "essential gender equality."

上告人らは、本件で問題となっている入会地について入会権を有していた者の女性直系卑属であった。本件は、上告人らが、本件における習慣のうち入会権者の資格を男性直系卑属に限ることが公序良俗に反して無効であるなどと主張した事案である。最高裁は、男性直系卑属要件は、民法第90条の下「公序良俗に反しており、したがって無効である」と判断した。 裁判所は、男の男性直系卑属要件は、専ら女子であることのみを理由として女子を男子と差別したものというべきであり、性別のみによる不合理な差別とし、男女の本質的な平等という日本国憲法上の基本的原則に反するとした。



Ramuhovhi and Others v. President of the Republic of South Africa and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2018)


Gender discrimination, Property and inheritance rights

In this case, the Constitutional Court held that §7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RMCA) was inconsistent with 172(2) of the Constitution, and therefore invalid, because it unfairly discriminated against women in polygamous customary marriages entered into before the enactment of the RMCA on the bases of gender and race, ethnic, or social origin. This case followed Gumede v. President of the Republic of South Africa, in which it was held that §7(1) was invalid as to monogamous customary marriages, but left the question of polygamous customary marriages for Parliament. The effect of this ruling was that pre-RCMA marriages continued to be governed by customary law, while post-RCMA marriages were automatically out of community of property. The Court declared that, in the interim until Parliament changes the RCMA, a husband and his wives in pre-RCMA polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property.



Rahube v. Rahube Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2019)


Gender discrimination, Property and inheritance rights

In this case, the Constitutional Court declared §2(1) of the Upgrading of Land Tenure Rights Act (Upgrading Act) unconstitutional. §2(1) of the Upgrading Act automatically turned land tenure rights into rights of property ownership, without providing other occupants or affected parties an opportunity to make submissions. The Court held §2(1) unconstitutional because it had a discriminatory effect on women’s property rights. During apartheid, only men could be the head of the family and hold Certificates of Deed and Grant. This had the effect of excluding women from holding land tenure rights. The Court determined that because §2(1) of the Upgrading Act was based on this apartheid position, it indirectly differentiated between men and women in a way that amounted to gender discrimination.



Odamtten and Others v. Wuta-Ofei Supreme Court (2018)


Gender discrimination, Property and inheritance rights

This case concerns the ability of women to pass on their life interest in an estate to their children under customary law. In this case, the deceased, the grandfather of the appellants, died intestate. According to the customary law of the Ga people of Osu, the deceased’s female descendants only have a life interest in the estate rather than ownership rights. The first respondent, having outlived his siblings, claimed the right as the head of the family to sell one piece of the estate’s property. The appellant, the daughter of the deceased’s daughter, sought to set aside the sale of said property by the first respondent on the grounds that she was not consulted before the sale, and additionally sought an order of perpetual injunction restraining the respondents from dealing with the property. The appellant contended that the Court of Appeal erred in holding that the customary law of Gas prevent a female child who inherits property from a deceased parent to pass on her interest to her children. However, the Supreme Court upheld the Court of Appeal’s decision, holding that the Court of Appeal stated the true position of customary law and practice of the devolution of property in Osu and other parts of Ghana, and that this customary property system is backed by judicial precedents on patrilineal forms of inheritance. The appellants’ argument that the Intestate Succession Law banned this patrilineal inheritance practice failed to take into account that it is not retroactive and thus does not apply to estates that have already been distributed. Thus, the sale of the property was deemed valid.



Arthur v. Arthur Supreme Court (2014)


Divorce and dissolution of marriage, Property and inheritance rights

This Supreme Court case is notable for solidifying the “Jurisprudence of Equality” doctrine as predominant in determining the sharing of marital property upon divorce. Following the termination of the marriage, the wife was granted by the High Court of Accra in May 2010 (i) custody of the children; (ii) ownership of a house and a “half share of the ‘storey building’; and (iii) a half share of ‘the shops at Weija, Accra. The husband appealed the decision to the Court of Appeal. The Court of Appeal set aside and replaced the orders of the High Court. The wife appealed that decision to the Supreme Court. The Supreme Court restored the decision of the trial judge in its entirety and noted that its decision was based on the marriage equality principle delineated in Article 16 (1) of the Universal Declaration of Human Rights 1948. The Court affirmed the principle that property acquired during marriage is a joint property and that the sharing of spousal property should no longer be dependent on the substantial contribution principle.



Mensah v. Mensah Supreme Court (1998)


Divorce and dissolution of marriage, Property and inheritance rights

This case concerns the sharing of spousal property upon divorce. On 22 December 1986, the High Court dissolved the marriage between the husband (“H”) and his wife (“W”) on a petition and cross-petition for divorce filed by H and W, respectively. Subsequently, the Court heard the parties’ claims for ancillary relief in which both H and W claimed ownership of the same house. The High Court found that W was the sole owner of the house. H appealed to the Court of Appeal, which concluded that the main house belonged to both H and W but since the extensions to the house were solely funded by W, W was the sole owner of the extensions. H appealed this decision to the Supreme Court. The Supreme Court found that H made some contribution to the extensions as well as to the household expenses and the clear intention of the parties in acquiring the extensions was to provide more space in the house for their joint benefit and that of their children. It was therefore held, dismissing the appeal, that the principle that property jointly acquired during marriage became joint property applied; and such property was to be shared equally on divorce.



Mensah v. Mensah Supreme Court (2012)


Divorce and dissolution of marriage, International law, Property and inheritance rights

The petitioner filed for divorce and sought an equal share of assets acquired during the marriage. At the time of marriage, neither party owned any property. During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department. The plaintiff also advised the respondent on property investments. The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets. The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets. The Supreme Court affirmed. Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets. Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992." Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property. To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.



Cressy v. Johnson Supreme Court of Victoria at Melbourne: Commercial and Equity Division (2009)


Property and inheritance rights

The proceedings concerned the plaintiff’s entitlement to an interest in seven properties purchased by the defendant in his name during and after their nine-year relationship. The plaintiff brought a claim under Part 9 of the Property Law Act 1958 (Vic), requesting that the Court adjust the interests in the properties on the basis of her financial and non-financial contributions to the relationship. While the parties were not married, the court was satisfied that on the balance of probabilities, they were in a genuine domestic relationship, considering factors such as their co-habitation, financial independence and the fact they had a child. In determining the contributions of each party to the relationship, the Court noted that “full value” must be given to the role of either party as homemaker. The plaintiff was not required to demonstrate a link between her contributions as homemaker or parent and the value of the properties in question. The Court acknowledged that the defendant had assumed the full burden of the mortgage commitments of the properties, but also acknowledged that the plaintiff had principal responsibility for the care of her three children. The Court was satisfied that the parties’ contributions were equal, and adjusted the interests in the properties on this basis.



Davis v. Johnson House of Lords (1978)


Domestic and intimate partner violence, Property and inheritance rights

This case held the Domestic Violence and Matrimonial Proceedings Act of 1976 allows the court to issue an injunction against a man to order him out of the home, even in a non-marital joint tenancy.



Peralta Melo v. Fernández Collado, Sentencia núm. 677 Supreme Corte de Justicia: Sala Civil y Comercial (2017)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant challenged a lower court ruling granting the respondent, his ex-partner, an equitable division of marital assets (bienes de la comunidad de hecho) upon the dissolution of their relationship. The appellant argued that 1) the court erroneously found the relationship to be a “common law marriage” (unión more uxurio) and 2) regardless of the character of the relationship, the appellant was the sole owner of the assets at issue as the respondent did not work outside the home. The appellant and the respondent had been in a monogamous, cohabiting relationship for 17 years and had three children together. The lower court found these facts supported by the testimony of witnesses through sworn affidavits, which the appellant challenged as insufficient to establish the character of the relationship. However, the Supreme Court rejected this argument, noting that a court may take into consideration such sworn testimony and that the birth of three children to the couple was indisputable and officially documented. The Supreme Court agreed that a stable, monogamous, familial relationship had been sufficiently established, giving rise to the presumption that the respondent was entitled to her share of the common assets, if proven that she contributed to their acquisition. The Supreme Court also rejected the appellant’s arguments that the respondent could not be entitled to common assets because she was not employed outside the home and thus did not contribute financially to the acquisition of the common assets. The Court cited the Fundamental Rights of the Family (number 11, article 55) recognizing that work in the home is also “economic activity that creates added value and produces wealth and societal wellbeing” (“actividad económica que crea valor agregado y produce riqueza y bienestar social”). Following this principle, the Court stated that a partner working in the home and caring for the children sustained and supported the partner working outside the home. Accordingly, it affirmed the decision of the lower court.

El apelante discutió una decisión del tribunal inferior que le otorgaba a la demandada, su ex pareja, una división equitativa de los bienes de la comunidad de hecho al disolverse su relación. El apelante argumentó que 1) el tribunal consideró erróneamente que la relación era un “matrimonio de hecho“ o “unión libre“ (unión more uxurio) y 2) independientemente del carácter de la relación, el apelante era el único propietario de los bienes en cuestión porque la demandada nunca trabajó fuera de casa. El apelante y la demandada habían estado en una relación de convivencia monógama durante 17 años y tenían tres hijos juntos. El tribunal de primera instancia encontró estos hechos respaldados por el testimonio de testigos mediante declaraciones juradas, que el apelante impugnó como insuficientes para establecer el carácter de la relación. Sin embargo, la Corte Suprema rechazó este argumento, señalando que un tribunal puede tomar en consideración dichos testimonios jurados y que el nacimiento de tres hijos de la pareja era indiscutible y oficialmente documentado. La Corte Suprema acordó que se había establecido con suficiencia legal una relación familiar estable, monógama. La Corte continúo que este establecimiento daba lugar a la presunción de que la demandada tenía derecho a su parte de los bienes comunes, si se demostraba que contribuyó a su adquisición. La Corte Suprema también rechazó los argumentos de la recurrente de que la demandada no podía tener derecho a bienes comunes porque no estaba empleada fuera del hogar y, por lo tanto, no contribuía financieramente a la adquisición de los bienes comunes. La Corte citó los Derechos Fundamentales de la Familia (número 11, artículo 55) reconociendo que el trabajo en el hogar es también “actividad económica que crea valor agregado y produce riqueza y bienestar social” (“actividad económica que crea valor agregado y produce riqueza y bienestar social ”). Siguiendo este principio, la Corte manifestó que un miembro de una pareja que trabajaba en el hogar y cuidaba a los niños sostenía y apoyaba al otro miembro que trabajaba fuera del hogar. En consecuencia, la decisión del tribunal inferior fue afirmada.



KI 123/13 Gjykata Kushtetuese (Constitutional Court) (2014)


Divorce and dissolution of marriage, Property and inheritance rights

The applicant (former husband) and his former wife purchased an apartment during their marriage, with the applicant’s father contributing to the purchase as well. The parties concluded an agreement stipulating that, in case of dispute, the parties agreed that the ownership of the apartment would be divided based on each party’s investment. After their divorce, the applicant filed a claim for the division of the property. The Municipal Court rejected the claim and, deeming the applicant’s father’s contribution to be an assistance to both spouses, ruled that the applicant and his former wife were co-owners, each owning half of the property. On appeal, the District Court quashed the Municipal Court’s decision and remanded, but the Municipal Court on remand reached the same decision (i.e., applicant and former wife each owned one-half of the property). The District Court then amended the Municipal Court’s judgment and ruled that the applicant owned 85.48% of the apartment, and his former wife 14.52%, according to their agreement. The applicant then litigated to execute the District Court’s judgment. The former wife filed a request for a revision with the Supreme Court, which granted the request and upheld the Municipal Court’s judgment, holding that the apartment was an asset created during the marital union, and the parties by law could not contract to the detriment of common assets acquired in marriage. The applicant appealed to the Constitutional Court, alleging violation of his right to the protection of property and right to a fair trial under the Constitution of Kosovo and the European Convention on Human Rights. The Constitutional Court emphasized that its task was not to act as a court of fourth instance or to deal with errors of fact or law unless it may have infringed on constitutional rights. The Supreme Court’s reasoning was clear and the proceedings below had not been unfair or arbitrary. Therefore, the Constitutional Court ruled inadmissible the applicant’s appeal from the Supreme Court’s judgment. (Also available in Srpski and English.)



L.K.W. v. D.D. Court of Final Appeal (2010)


Divorce and dissolution of marriage, Property and inheritance rights

The court considered the amount of assets a wife was entitled to in a divorce proceeding. The wife appealed the lower court decision that one-third of the joint assets should go to her. The court did not find the allocation to be unfair or unreasonable and upheld the lower court’s division of the total assets.



S.P.H. v. S.A. Court of Final Appeal (2014)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant and respondent were German nationals whose marriage was recognized in Hong Kong and who were initiating a divorce. Prior to their marriage, they had entered into a prenuptial agreement under German law. The court considered whether Hong Kong was the proper forum for the divorce proceedings, and whether a Hong Kong court should stay the divorce action at the request of one of the parties, due to ongoing divorce proceedings in Germany. The court adopted the principles of the Supreme Court of the United Kingdom decision in Radmacher v Granatino (2011) favoring prenuptial agreements. This reversed the previously long-held position that prenuptial agreements were against public policy and not to be enforced.



Babumba v. Kizito High Court of Uganda (1992)


Property and inheritance rights

Here, the Court held that “having a child or children by the deceased is not enough to confer on the woman widowhood.” Consequently, the claimant was unable to inherit property from her deceased partner.



Kagwa v. Muteteri High Court of Uganda (Family Division) (2005)


Divorce and dissolution of marriage, Property and inheritance rights

Here, the Court held that the termination of a marriage should lead to the division of matrimonial property between the two spouses. This rule applies when both spouses have contributed, financially or otherwise, toward the acquisition of the property. In this case, even though the marriage between the two partners was declared void, the Court held that the two matrimonial properties should be divided between the partners. The Court also held that custody arrangements should not excessively restrict the access of one parent to the child.



Douglas v. CTML Pty Ltd. Queensland Civil and Administrative Tribunal (2018)


Gender discrimination, Property and inheritance rights

The decision of the tribunal was only in relation to whether to approve the respondent’s application to dismiss the complaint. The respondent’s application was denied because there were real factual issues in dispute. It appears that the substantive trial has not yet commenced (or alternatively a settlement was reached). In any case, this case is relevant as it illustrates the discrimination women may face in Australia when seeking to establish themselves in a secure environment and raise their children. The complainant was a single mother who sought to rent an apartment from the respondent. The complaint rested upon the allegation that the complainant’s tenancy application had been rejected (and she was not even allowed to see the property) as a result of the complainant intending on having her young son live with her in the rental property.



Processo nº 35/2011 Supreme Court (2011)


Divorce and dissolution of marriage, Property and inheritance rights

In a proceeding following a divorce, the appellant wife argued that she had married her husband under a regime of separate property. The court determined that a couple married under such a regime can only switch to a community property regime upon agreement between the parties, which had not occurred in this case.



Govender v. Ragavayah High Court of South Africa: Durban and Coast Local Division (Hooggeregs Hof van Suid Afrika: Durban en Kusafdeling) (2008)


Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Hindu rites. Accordingly, when her husband died intestate, his parents stood to inherit his estate. The applicant sought a declaratory judgment that the word “spouse” as used in the Intestate Succession Act 81 of 1987 includes a surviving partner to a monogamous Hindu marriage. The Court granted the declaratory judgment and held that the applicant was entitled to inherit from her deceased husband.

Die aansoeker was 'n vrou wat volgens Hindoe tradisie getroud is. Haar man het intestaat gesterf en gevolglik het sy ouers die reg gestaan om sy boedel te erf. Die applikant het 'n verklarende uitspraak aangevra dat die woord "gade" ingesluit word soos in die Intestaat se Erfreg Wet 81 van 1987, as 'n oorlewende vennoot vir 'n monogame Hindoe-huwelik. Die hof het die verklarende uitspraak toegestaan dat die aansoeker geregtig was om van haar oorlede man te erf.



Moosa N.O. and Others v. Harnaker and Others High Court of South Africa: Western Cape Division ( Hooggeregs Hof van Suid Afrika: Weskaap Afdeling) (2017)


Gender discrimination, Property and inheritance rights

The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.

Die oorledene is volgens die Islamitiese Wet met ‘n tweede en derde applikant getroud. Die huwelik van die oorledene en die derde applikant is aangegaan voor die huwelik tussen die oorledene en die tweede applikant. Die oorledene en die tweede applikant het egter ‘n siviele huwelik aangegaan om te kwalifiseer vir ‘n huislening. Na die afsterwe van die oorledene het die Registrateur van Aktes, Kaapstad, geweier om die titel-akte van die gesinshuis in die naam van die derde aansoeker te registreer. Die weiering van die registrateur is gegrond op die betekenis van die term “oorlewende gade” soos beoog in terme van artikel 2C(1) van die Wet op Testamente 7 van 1953 ( die “Testamente Wet”). Volgens die registsrateur is die enigste erkende oorlewende gade van die oorledene, die tweede aansoeker aangesien hulle ‘n siviele huwelik aangegaan het. DIe hof het artikel 2C(1) van die Wet op testamente ongrondwetlik verklaar aangesien dit nie die regte van gades wat kragtens die Islamitiese wet getroud is, erken nie asook nie veelvuldige vroulike eggenote wat met ‘n oorlede testateur in ‘n poligamiese moslemhuwelik verbind is nie.



Daniels v. Campbell and Others Constitutional Court (Konstitusionele Hof) (2004)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis. The Court held that the word “spouse” as used in the Intestate Succession Act includes the surviving partner to a monogamous Muslim marriage and that the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.

Die applikant was ‘n vrou wat volgens Moslem tradisie getroud is en wie se eggenoot intestaat gesterf het. Die huwelik is nie volgens die huwelikswet 25 van 1961 deur ’n huweliks beampte bekragtig nie. Die huis waarin die applikant en haar man gewoon het is na die oorledene se boedel oorgeplaas. Die applikant is meegedeel dat sy nie uit die boedel van die oorledene kon erf nie omdat sy getroud was volgens die Moslem tradisie en is dus nie 'n "oorlewende gade" nie. ’n Eis vir onderhoud teen die boedel is op dieselfde basis verwerp. Die hof het beslis dat die woord "gade" soos gebruik word in die Wet op Intestate Erfopvolging, die oorlewende maat van ’n monogame moslem-huwelik insluit. Die woord "oorlewende” wat gebruik word vir die Wet 27 van 1990 vir die onderhoud van oorlewende eggenote, sluit die oorlewende eggenoot in van 'n monogame Moslem huwelik



Bhe and Others v. Khayelitsha Magistrate Constitutional Court (Konstitusionele Hof) (2004)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.

Hierdie uitspraak het bestaan uit drie verwante sake (BHE, Shibi en SARK) wat saam beslis is en het betrekking op die Afrika gebruiks regsreël van eersgeboortereg. In BHE het 'n moeder 'n saak gemaak om die eiendom van haar oorlede man vir haar dogters te verseker. In Shibi is die applikant volgens die Afrika gewoontereg, die reg ontsê om van die intestate boedel van haar broer te erf. In SAHRC het die Suid-Afrikaanse Menseregte Kommissie en die "Women’s Legal Centre Trust" 'n saak in die openbare belang gebring om die reël van manlike eersgeboortereg wat in artikel 23 van die Swart Administrasie Wet 38 van 1927 ongeldig te verklaar. Die Konstitusionele Hof het artikel 23 ongeldig verklaar wat beteken dat alle boedels van oorledenes onderworpe sal wees aan die Intestaat Opvolgwet 81 van 1987 waaronder weduwees en kinders voordeel kan trek ongeag hul geslag of wettigheid. Die Hof het ook gelas dat boedels onderverdeel word in omstandighede waar die oorledene in ’n poligame huwelik was en deur meer as een eggenoot oorleef word. In welke geval ’n oorlewende eggenoot ’n kind se deel van die intestate boedel erf of ’n waarde van die intestate boedel wat nie die bedrag wat deur die Minister vir Justisie en Grondwetlike Ontwikkeling vasgesteld is, oorskry word soos die kennisgewing in die Staatskoerant nie.



Dlanjwa v. Minister of Safety and Security Supreme Court of Appeal (Hoogste hof van Appèl) (2015)


Domestic and intimate partner violence, Property and inheritance rights

The appellant was shot by her husband, who subsequently committed suicide. Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased. The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials. The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998. The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant. The court therefore upheld the appeal.

Die appèllant is deur haar man geskiet waarna hy selfmoord gepleeg het. Haar man het vir die Suid-Afrikaanse Polisiediens gewerk daarvolgens het sy die Minister van Veiligheid en Sekuriteit gedagvaar vir algemene skadevergoeding, mediese uitgawes, verlies van verdienste, en die verlies van ondersteuning wat voortspruit uit haar beserings en die oorledene se selfmoord. Die appèllant beweer dat die skietery en selfmoord veroorsaak is deur, onder andere, die nalatigheid van die stasiebevelvoerder en/of sekere polisiebeamptes. Die appèllant beweer dat diè polisiebeamptes versuim het om (a) die oorledene se vuurwapen te verwyder, (b) dissiplinêre stappe teen hom te inisieer, en (c) om hom strafregtelik aan te kla ten spyte van haar vorige versoeke en hul kennis dat die oorledene alkohol misbruik het, 'n gewelddadige humeur het en selfmoordneigings gehad het, haar aangerand het, 'n vuurwapen op haar gerig het, en haar gedreig het dat hy haar gaan skiet en daarna selfmoord pleeg, wat daartoe gelei het om 'n beskermingsbevel teen hom onder die Wet op Huishoudelike Geweld van 1998 te verkry. Die Appèlhof het bevind dat: (a) die polisie 'n wettige plig gehad het om die appèllant se klagtes te ondersoek nadat sy berig het dat sy vir haar veiligheid gevrees het; (b) die polisie was nalatig was deur hul plig ter versuiming om maatreëls te tref om die appèllant te beskerm teen die oorledene (en om te verhoed dat die oorledene selfmoord pleeg); en (c) die appèllant het die onregmatigheid aan die kant van die polisie bewys as gevolg van die verband tussen die polisie se nalatige pligssversuim en die skade wat die appèllant gely het. Die hof het die appèl dus goedgekeur.



Women's Legal Centre Trust v. President of the Republic of South Africa and Others High Court of South Africa: Western Cape Division (Hooggeregshof van Suid Afrika: Wes Kaap Afdeling) (2018)


Gender discrimination, Property and inheritance rights

The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court. They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa. The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court. The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex. The court directed the President, Cabinet, and Parliament to prepare and bring into operation legislation to recognise marriages performed in accordance with Sharia law.

Die eiser het 'n versoek om drie gekonsolideerde aksies direk na die Konstitusionele Hof te bring. Hulle het 'n verklarende-bevel aangevra dat die President, Moslem-huwelike as geldig vir alle doeleindes in Suid-Afrika erken. Die Konstitusionele Hof het die eisers se pleit vir direkte toegang van die hand gewys en het hulle eerder aan die Hooggeregshof verwys. Die Hooggeregshof het bevind dat die staat se versuim om wetgeving te aanvaar wat erkenning gee aan huwelike wat godsdienstig Moslem is, die regte van Moslemvroue gekend het op grond van godsdiens, huwelikstatus, geslag en seks. Die hof het die President, die Kabinet, en die Parlement oprag gegee om wetgeving voor te berei en in werking te stel om huwelike wat volgens die sharia-wetgewing uitgevoer is, te erken.



刘彩丽与张飞离婚纠纷,安徽省阜阳市中级人民法院 (Liu v. Zhang) Intermediate People's Court of Fuyang Municipality Anhui Province (2014)


Divorce and dissolution of marriage, Property and inheritance rights

Liu and Zhang held the wedding ceremony in 2009 and registered for marriage in 2011. In order to marry Liu, Zhang paid a “bride price” of 96,080 Chinese yuan, and Liu’s dowry included a television, refrigerator, washing machine and several pieces of furniture. Liu filed for divorce in 2013, and Zhang requested Liu to return part or all of the bride price. The court found that the bride price was paid for the purpose of marrying Liu, and its payment led to difficulty in Zhang’s parents’ life after Zhang’s marriage. Thus, the court held that Liu was required to return a portion of the bride price. Considering the length of Zhang and Liu’s marriage and their standard of living during that time, the Court ordered Liu to return 32,000 Chinese yuan of the bride price. Moreover, the court found that Liu’s dowry was Liu’s personal property and Zhang had no interest therein. Available here.

离婚、财产与继承权

刘某与张某于2009年举办婚礼,于2011年办理结婚登记。张某为与刘某缔结婚姻关系,付给彩礼人民币96080元。刘某的嫁妆包括电视、冰箱、洗衣机和几件家具。刘某于2013年提起诉讼,要求与张某离婚,张某要求刘某退还彩礼。法院认为张某付给的彩礼是为了与刘某缔结婚姻关系,彩礼数额巨大,导致婚后张某家庭生活困难。法院判决刘某应退还张某部分彩礼。综合考量两人共同生活的时间及消费状况,法院判决刘某退还张某彩礼款32000元。同时,刘某的嫁妆属刘某个人财产,应依法由其个人所有。



Hosho v. Hasisi High Court of Zimbabwe (2015)


Harmful traditional practices, Property and inheritance rights

This was a dispute involving property in the name of the plaintiff and occupied by the defendant. The plaintiff sought an order for the eviction of the defendant, claiming that he had lawfully acquired the property. The defendant claimed that she was the rightful owner as the surviving spouse of the previous owner of the property through an unregistered customary law union. The court held that defendant had no right to the property as there was no concrete evidence supporting the existence of her customary marriage. The court explained that although the absence of a formal marriage certificate is not fatal to the recognition of a customary law union in matters of inheritance and constitutional protections for surviving spouses and children, the union must be proven to exist. Payment of a roora/lobola, or bride price, remains the most cogent and valid proof of a customary union/marriage, particularly where it has not been formally registered because the ceremony itself involves representatives from both families and others who could attest to the process having taken place. Furthermore, there is often documentary evidence of what had been paid and what remained to be paid. Here, the court held for the plaintiff because there was no evidence of a roora/lobola payment and the defendant could not prove her customary marriage to the deceased.



Congdon v. Congdon Court of Appeals of Virginia: Richmond (2003)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

In this divorce case, the husband appealed the trial court’s decision to grant spousal support to the wife notwithstanding her adultery, based on the court’s finding that manifest injustice would otherwise result. The appellant and the appellee were married for 20 years and had two children. The appellant had a stable career in the trucking business and earned $250,000 per year and had assets totaling more than $6 million. The appellee was the primary caretaker for the children and worked part-time as a receptionist earning $10 an hour. She did not contest that she had an affair for at least five years during the marriage. The court noted, however, that the evidence “portrayed the appellant as a profane and verbally abusive man,” who frequented “strip joints and topless bars,” and frequently boasted and bragged about these experiences in lewd terms in front of the appellee and their children. He was also verbally abusive to his children. Several witnesses testified that “they had never once seen [him] show any affection or any kindness toward [his wife],” and that he “chronically complained” to the appellee and others about her “weight, appearance, housekeeping, and spending habits.” The trial court explained that Va. Code § 20-107.1(B)the law precludes an award of support to any spouse found guilty of adultery, subject to narrow exceptions, including when the trial court determines from “clear and convincing evidence, that denial of support and maintenance would constitute manifest injustice, based upon the respective degrees of fault during the marriage or relative economic circumstances of the parties. The question before the court was whether the trial court committed a reversible error in stating that the statutory standard for deciding if a denial of support and maintenance constitutes a manifest injustice involved considering “either” the respective degrees of fault during the marriage “or” the relative economic circumstances of the parties. In affirming the ruling of the trial court, the Court of Appeals held that the trial court erred, but also that it was a harmless error as it was supported by facts that satisfied the correct standard. The court determined that the proper standard for determining if a denial of spousal support would constitute a manifest injustice must consider “both” the comparative economic circumstances “and” the respective degrees of fault, i.e., the test was a conjunctive test rather than the disjunctive test used by the trial court. Nevertheless, the Court of Appeals affirmed the ruling under correct test. With respect to the relative degrees of fault, the Court of Appeals explained that adultery was not dispositive and that a reasonable factfinder could conclude that appellant’s severe and longstanding abusive conduct went beyond “mere incivility or petulance” and tipped the scales in appellee’s favor. Moreover, the Court of Appeals affirmed the trial court’s finding of “extreme disparities” in the relative economic situations of the parties. Consequently, the trial court erred in stating the standard for determining if a denial of spousal support would cause manifest injustice as requiring either economic disparities or fault instead of both factors, but the error was harmless as the factual findings addressed both factors under the appropriate standard.



Bergaust v. Flaherty Court of Appeals of Virginia (2011)


Gender discrimination, Property and inheritance rights

The plaintiff, a mother, brought a petition for child support against the putative father. The two met during a trip to France and had a long-distance relationship for 18 months. After returning to Virginia from another visit to the defendant in France, the plaintiff learned she was pregnant. Because the defendant was her only sexual partner during the relevant time period, she informed the defendant that the child was his. The defendant said he would help in any way he could and called twice a week during the pregnancy. Their child was born in Alexandria, Virginia, and the defendant continued to call regularly during this time. When the child was seven months old, the defendant came to Virginia to meet and spend time with the child. Following this visit, the defendant’s contact with the plaintiff decreased and ultimately ceased. Several years later, the plaintiff learned of the defendant’s whereabouts and brought a petition for child support. The circuit court dismissed the petition for lack of personal jurisdiction. The question before the Virginia Court of Appeals was whether the defendant had fathered a child in Virginia pursuant to the long-arm statute that provided, in part, that a court may exercise personal jurisdiction over a person when it is shown that the person “conceived or fathered” a child in Virginia. The statute does not define the terms “conceived or fathered.” In finding no personal jurisdiction, the Court of Appeals affirmed the circuit court’s interpretation of the term “fathered” to mean “to beget or to procreate as father,” rejecting the plaintiff’s argument that the term encompassed “the acknowledgment of parentage” while in Virginia. Although the Court of Appeals acknowledged that the ordinary meaning of “fathered” includes “to make oneself the father…by acknowledgment,” the court concluded that if the state legislature had intended this broader meaning of the term, it “presumably would have included the word ‘mothered’ along with ‘conceived or fathered’ to encompass the non-custodial mother of a child living in [Virginia].” Therefore, per Virginia law, the child was not fathered in Virginia and the long-arm statute could not grant personal jurisdiction over the matter.



deCamp v. deCamp Court of Appeals of Virginia: Chesapeake (2014)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant and the appellee were married for 21 years and had three children. After the birth of their first child, by mutual agreement of the parties, the appellee stopped working and became a homemaker and the children’s primary caregiver. In adjudicating couple’s separation agreement, the trial court ordered the appellant to pay the appellee spousal support in addition to child support pursuant to statutory guidelines. On appeal, the appellant raised several arguments including that the trial court failed to exclude child-related expenses that he already had to pay for through child support awarded to appellee and that the court erred in refusing to impute income to appellee even though she was voluntarily unemployed. With respect to the first argument, the court affirmed the trial court’s conclusion, explaining that expenses that are indivisible by nature or trivial in amount need not be segregated. Although “some of wife’s claimed expenses did indeed include expenses attributable to the children, such as Internet service fees, utilities, and food,” those expenses were properly included in the spousal support award because they were “indivisible by their very nature.” With respect to the trial court’s refusal to impute income to the appellee, the court explained that “the law does not require wife return to work immediately upon divorce to avoid judicial imputation of income merely because she has provable earning capacity at the time of the divorce.” Rather, any decision to impute income must be done “within a review of all the statutory factors concerning spousal support.” Under the circumstances, the court found the trial court’s refusal to impute income to the appellee to be supported by the facts, given that the appellant had been the sole monetary contributor for the entire duration of their marriage, the appellee had left her nursing career in order to be a full-time homemaker and caregiver for their children, and the family moved eight times over the course of the marriage in order to enable the appellant to pursue and advance his military career. Thus, the refusal to impute any income to her was not an error.



23 Pa. C.S.A. § 4301, Domestic Relations - Child Support (1985)


Divorce and dissolution of marriage, Property and inheritance rights

Pennsylvania uses a system referred to as the “Income Shares Model” for determining child support. This methodology focuses primarily on the net incomes of the parents and aims to grant the children the same proportion of the parental income that he or she would have received had the parents not divorced.



Paschke v. Frans Supreme Court of Namibia (2015)


Gender discrimination, Property and inheritance rights

The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.



Clayton v. Clayton Supreme Court of New Zealand (2016)


Divorce and dissolution of marriage, Property and inheritance rights

This case concerned the determination of what constitutes relationship property in a divorce proceeding and how trusts may affect this determination (e.g. if a sham trust is implemented to hide assets, therefore affecting a woman’s economic rights in a divorce). The term “relationship property” is defined in the Property Relationships Act of 1976, the principles of which focus on the equality of spouses and that at the end of a relationship, any economic divisions should reflect equal contributions made by the couple during the relationship. However, any property constituting “trust property” is not available for division under the PRA. In this case, the parties had been married for 17 years with two daughters. During the marriage, the respondent-husband had become a successful business owner and set up several discretionary trusts. The trusts ostensibly related to the business he had established. The appellant-wife had assisted with her husband’s business ventures and was the main childcare provider during their marriage. The Court concluded that, in this case, the powers under a trust deed constituted “property” under the PRA. In applying the two-stage approach of section 182, the Court concluded that one of the discretionary trusts settled during the Clayton’s marriage constituted a nuptial trust under §182 of the Family Proceedings Act 1980 because of its connection to the marriage. The court found that the “nature of the assets is not determinative of whether the settlement is nuptial or not,” and that a settlement “made for business reasons” and containing business assets can be a nuptial settlement. The New Zealand Women’s Law Journal described this as a “decision that provided a much-needed step towards a more equal recognition of the traditional economic disadvantages faced by women.”



Supaul v. Lalchand Supreme Court of Belize (2018)


Divorce and dissolution of marriage, Property and inheritance rights

The issues in the preliminary hearing for this case were (i) whether the parties were involved in a common law union and what the material dates of that union were and (ii) whether an agreement entered into between the parties barred the applicant from bringing her claim for maintenance and division of property. The applicant alleged that the parties lived together as man and wife for eight years. The respondent claimed the first two years involved a sexual relationship only and that they did not live as man and wife for the last four years of their relationship because the relationship was unstable. He also contended that the parties had “more of a business relationship.” Under Belize law, a “common law union” is a “relationship that is established when a man and woman who are not legally married to each other and to any other person cohabit together continuously as husband and wife for a period of at least five years.” The court analyzed the evidence of the relationship and found the respondent’s evidence to be “lacking in credibility.” The court found there to have been a common law union for eight years.



Vasquez v. Vasquez Supreme Court of Belize (2017)


Divorce and dissolution of marriage, Property and inheritance rights

The petitioner applied to court for dissolution of marriage on the ground of respondent’s adultery, which was granted in 2010. The petitioner then filed for maintenance for herself and their children as well as for other miscellaneous amounts for loans and medical expenses. The court granted maintenance, which was being garnished from respondent’s salary. The respondent contested the continuation of these payments. Under Belize law, upon divorce the court has discretion to order a husband to pay maintenance to his former wife in an amount the court may think to be reasonable for the remainder of her life. The court ordered a continuation of monthly maintenance payments based on the “practice that maintenance is generally awarded on the basis of one-third of the joint incomes of the parties, less the wife’s income” in order to “supply the former wife with the necessaries, comforts, and advantages incidental to her social position.” The claims for loans and medical expenses were dismissed.



Flowers v. Jeffords Supreme Court of Belize (2018)


Property and inheritance rights

The claimant alleged that her common law husband passed away without a will. His son, the defendant, attempted to evict her from the home she shared with the deceased prior to his death. The claimant responded by bringing this administrative action to remove the son as the deceased’s personal representative and to be recognized as one of the lawful beneficiaries of the estate. The son and the deceased’s other children from previous relationships alleged that the claimant was merely their father’s caretaker, but could provide no evidence she was ever paid and could not explain why she lived with their father prior to him falling ill. Under Belize law, a common law union is defined as “an unmarried man and an unmarried woman, who share a mutual commitment publicly to live their life together as a couple and in fact do so for a continuous period of five years or more.” The typical signs of such a union are that the parties “share the same household; the relationship is stable; there is financial support or the pooling of financial resources; there is a sexual relationship; there is public acknowledgement of the relationship and there may be children.” The court analyzed all evidence presented on the nature of the claimant’s relationship with the deceased and held that the claimant was “the female party to a common-law union with [the deceased] up until the time of his death” and so she was a lawful beneficiary of the estate.



Barclay v. Digen Supreme Court of Liberia (2011)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The appellant filed a complaint to divorce her husband and an action of summary proceedings to recover her property from the appellee. The appellee-husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her own name solely for herself. The Court held that, under the 1986 Constitution, (a) there is no legal significance of a woman choosing to use her husband’s surname; it does not affect the right of a woman to own property while married; (b) a woman can purchase property in her maiden name during marriage; (c) unless freely consented to, property which is owned solely by a husband’s wife cannot be controlled by her spouse. The Court ruled that the appellant proved her title to the property by a preponderance of evidence. Therefore, the Supreme Court reversed the verdict and directed the lower court to enter judgment to evict the appellee.



Application by Court of First Instance to Annul a Certain Civil Law Constitutional Court (2016)


Divorce and dissolution of marriage, Property and inheritance rights

During a divorce proceeding, a matter arose regarding contribution and participation receivables, particularly the application of the Turkish Civil Code, Number 4721, Article 219, Sub-Article 2, Sub-Paragraph 5, dated November 22, 2001, which provides that the income from a personal asset is such spouse’s acquired asset. The court of first instance held that this provision violated the Constitution, Articles 2 and 35, because it unreasonably interfered with property rights and would, therefore, prevent civil marriages. The Constitutional Court, considered the Constitution, Article 35, which simply states that property rights are universal, and this right shall only be limited if public welfare requires. The Court also considered Article 13, which states that fundamental rights and freedoms may be limited only by statute, so long as the core of such rights, as well as other relevant constitutional provisions, are not affected. The Court also noted that Article 41 establishes the state’s positive obligation to promulgate regulations to protect and preserve the institution of the family. The Court held that, while the law in question limits property rights, this limitation does not affect the core of the right and is based on justifiable purposes, and the law in question does not violate the Constitution. The justifiable purpose is protecting families, and especially women, by requiring income from a personal asset to be mutually distributed, thereby promoting public welfare.



AP 2900/90 Tereza Usar Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2012)


International law, Property and inheritance rights

In 2007, Tereza Usar petitioned the Municipal Court in Mostar to recognize a common law marriage so that she could exercise her right to a family pension. Usar had lived in a common-law marriage with Ivan Usar from July 1992 until September 1993 when he, a member of the Croatian Defence Council, was killed during the Bosnian War. In the suit, Usar named as defendants the minor child she had with Ivan Usar and his legal heirs, his children from a previous marriage. The Municipal Court dismissed Usar’s claim, finding her petition constituted a request to establish facts and not to enforce a right or legal relation because common-law marriage is not regulated by law, but is a factual situation of a union of a man and a woman. The Cantonal Court in Mostar and the Supreme Court of the Federation of Bosnia and Herzegovina (“FBiH”) upheld the lower court’s dismissal. In 2012, the Constitutional Court of BiH quashed the judgment of the Cantonal Court in Mostar, finding the Cantonal Court violated Usar’s right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention on Human Rights. The appellate court found the lower court had arbitrarily applied the law in determining that common-law marriage is a factual and not a legal relation. The Cantonal Court’s decision directly conflicted with Articles 213, 230-234, 263, and 380 of the Family Law of the FBiH, which prescribe the manner for the maintenance of common-law partners and children from common-law marriages, their property relations, and the procedure for obtaining protection against domestic violence. That is, according to the Constitutional Court of BiH, the legislature of the FBiH did not make any distinction between marriage and common-law marriage with respect to legal relations. Thus, “a life in common-law marriage implies certain rights and obligations, and hence, the existence of a legal relation between the persons who live or who had lived in a common-law marriage.”

Decision available in English here.



平成24年(ク)984 (2012 (Ku) No. 984) 最高裁 (Supreme Court of Japan) (2013)


Property and inheritance rights

In this appeal, a child born to unmarried parents appealed the High Court’s finding that a relevant part of the proviso to Article 900.4 of the Japanese Civil Code was not inconsistent with Article 14.1 of the Constitution of Japan, prohibiting discrimination based on race, belief, sex, social status, or lineage. The proviso set forth that the statutory share in inheritance of a child born out of wedlock is half of that of a child in wedlock. The Supreme Court reversed the High Court’s ruling and found that the proviso was inconsistent with Article 14.1 of the Constitution. In making this finding, the Supreme Court took into account the changes in the following, which have been observed since 1947––the year in which the Japanese Civil Code was revised after World War II: Japanese society, forms of family, legislative acts in foreign countries, and relevant Japanese legal frameworks. The Supreme Court noted that, even though the system of civil marriage is strongly respected in Japanese society, society has come to accept the idea that a child should not suffer disadvantages based on a factor that she/he did not cause or could not change––whether to have been born in or out of wedlock––and that a child’s rights need to be protected and she/he must be given respect as an individual.

本件は、非嫡出子の法定相続分が嫡出子の2分の1とした日本民法第900条第4号但書が日本国憲法第14条第1項に抵触しないとした高裁判断を不服とした事案である。最高裁は、高裁の判決を覆し、但書が無効だと判断した。本判決では、戦後の民法改正が行われた昭和22年以降の日本の社会、家族の実態、さらに諸外国の立法例の変化を考慮し、非嫡出子の在り方に対する国民の意識変化を指摘した。また、日本社会では、法律婚を尊重する意識が幅広く浸透しているが、父母が婚姻関係になかったという,子にとっては自ら選択ないし修正する余地のない事柄を理由としてその子に不利益を及ぼすことは許されず,子の権利を保証すベきである考えも確立されてきている。



Ponde v. Bwalya Supreme Court for Zambia (2016)


Divorce and dissolution of marriage, Property and inheritance rights

The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.



Joan v. Hodgson High Court for Zambia (2011)


Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (Konstitutionele Hof van Suid Afrika) (2008)


Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage. Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes. She was always the primary caregiver of the children. After forty years, the marriage broke down irretrievably. Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension. In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court. Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely. The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages. In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid. The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW. It held that the two provisions are patently discriminatory, unfair, and not justifiable. In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment. The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”

Mev. en Mnr. Gumede, beide in KwaZulu-Natal gedomisilieer, het 'n monogame huwelik in 1968 aangegaan en vier kinders is tydens hulle huwelik gebore. Omdat sy deur haar man verbied is om te werk, het Mev. Gumede nog nooit gewerk nie en kon nie bydra tot die bydrae van die familie se boedel nie, wat twee familie-huise ingesluit het. Sy was altyd die primêre versorger van die kinders. Na veertig jaar het die huwelik onherstelbaar verbrokkel. Mev. Gumede het geen familie gehad nie en was afhanklik van finansiële steun van haar kinders en haar pensioen. In 2003 het Mnr. Gumede egskeiding verrigtinge voor die Egskeidingshof ingestel. Mev. Gumede het ook die Hooggeregshof genader en 'n bevel verkry wat die diskriminerende wetgewende bepalings waarop die Egskeidingshof op kon staatmaak, ongeldig maak. Die Konstitusionele Hof is vervolgens deur die Minister van Binnelandse Sake en die KwaZulu-Natal lid van die Uitvoerende Raad vir Tradisionele Leiers en Plaaslikeregeringsake wat die bevel teengestaan het, vir die herevaluering van die bevel van die Hooggeregs Hof wat sekere afdelings van die Wet op die Erkenning van Gebruiklike Huwelike, van die KwaZulu- Wet op die wet op Zoeloe Wetgewing 16 van 1985 en sekere afdelings van die Natalse wet op Zulu regte (B.proc R155 of 1987), wat die gevolge van gebruiklike huwelike reguleer, ongrondwetlik verklaar het. In 'n lang uitspraak het die Konstitusionele Hof baie moeite gedoen om te verduidelik dat enige onderskeid tussen die gevolge van gebruiklike huwelike wat voor en na die inwerkingtreding van die Wet op Erkenning van Gebruiklike huwelike aangegaaan is, diskriminerend, strydig is met die Grondwet en ongeldig is. Die Konstitusionele Hof het kennis geneem van die internasionale instrumente wat Suid-Afrika bekragtig het wat vorme van diskriminasie teen vroue verbied, insluitend CEDAW. Dit het beslis dat die twee bepalings oorwegend patriminerend, onbillik en nie regverdigbaar is nie. Ingevolge die uitspraak is alle monoggame gebruiklike huwelike aangegaan voor die Erkenning van Gebruiklike Huwelike Wet in werking gekom het, tree nou ipso facto binne gemeenskap vangoedere op, uitsluitend gebruiklike huwelike wat beëindig is deur die dood of deur egskeiding voor die datum van die vonnis. Die Konstitusionele Hof het verder bevind dat die grondwetlike ongeldigheid van artikel 7(1) beperk was tot monogame huwelike en behoort nie poligame huwelike of hul eie gevolge te bemoei nie, met die bepaling dat poligame huwelike steeds gereguleer word deur gewoontereg totdat die Parlement ingryp.



Ruling with Gender Perspective (Isolated Thesis Docket: VII.2o.C.127 C (10a.)) Second Collegiate Tribunal in Civil Matters of the First Circuit (2017)


Gender discrimination, Property and inheritance rights

“RULING WITH A GENDER PERSPECTIVE. IN ORDER TO PROPERLY ASSESS THE EVIDENCE, THE COURT MUST IDENTIFY A VULNERABLE SITUATION IN CASES WHERE A FAMILY CRISIS IS EVIDENT.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. As a reference, the Mexican Supreme Court has repeatedly instructed all Mexican courts to take gender perspective into account when ruling, even if the plaintiff does not formally request it. As background, the precedent that culminated in this isolated thesis arose from a dispute over a lease. The plaintiff, a housewife, offered testimonial evidence but was required to have her testimony corroborated by certain family members. Due to the plaintiff’s poor relationship with these family members, the family members provided false testimony in order to harm her. The Court ruled that this testimony should have been suppressed. In this case, the judge was required to take gender perspective into account, as the plaintiff was found to be in a vulnerable situation, given her status as a housewife. It is important to note that it has been proven that, historically, housewives have frequently been in a disadvantageous position. As a result, the Court was required to consider the plaintiff’s relationship with her family members in order to assess the evidence based on a gender perspective.

Original case available: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=205/02050000198348990005005.pdf_1&sec=DIANA_HELENA_SANCHEZ_ALVAREZ&svp=1

“VEREDICTOS CON UNA PERSPECTIVA DE GÉNERO. "PARA PODER EVALUAR ADECUADAMENTE LA EVIDENCIA, EL TRIBUNAL DEBE IDENTIFICAR UNA SITUACIÓN VULNERABLE EN CASOS EN QUE UNA CRISIS FAMILIAR SEA EVIDENTE."

Esta tesis aislada es un ejemplo relevante de la jurisprudencia con la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. Como referencia, la Corte Suprema de México ha ordenado en repetidas ocasiones a todos los tribunales mexicanos que tengan en cuenta la perspectiva de género cuando dictaminen, incluso si el demandante no lo solicita formalmente. Como antecedentes, el precedente que culminó en esta tesis aislada surgió de una disputa sobre un contrato de arrendamiento. La demandante, ama de casa, ofreció pruebas testimoniales, pero se le exigió que su testimonio fuera corroborado por ciertos miembros de la familia. Debido a la mala relación del demandante con estos miembros de la familia, ellos proporcionaron un testimonio falso para hacerle daño. El tribunal dictaminó que este testimonio debería haber sido suprimido. En este caso, se requirió que el juez tomara en cuenta la perspectiva de género, ya que se descubrió que la demandante estaba en una situación vulnerable, dada su condición de ama de casa. Es importante tener en cuenta que se ha demostrado que, históricamente, las amas de casa con frecuencia han estado en una posición desventajosa. Como resultado, se requirió que la Corte considerara la relación de la demandante con los miembros de su familia para evaluar las pruebas basadas en una perspectiva de género.



Nxumalo v. Ndlovu Supreme Court (2011)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.



Dlamini v. The Quadro Trust & 8 Others Supreme Court (2016)


Gender discrimination, Property and inheritance rights

The appellant sought to set aside a lower court’s decision and remove his deceased paternal grandmother’s estate executors. The lower court found that the appellant had no locus standi to bring forth the application as he was not the lawful beneficiary of his grandmother’s estate—he was born out of wedlock and his father predeceased his now deceased paternal grandmother. Therefore, the appellant had no right of inheritance intestate. The Supreme Court found that Section 31 of the Constitution (the abolition of the common law status of illegitimacy of a person born out of wedlock) abolishes the principle that children cannot inherit from their father. The Court upheld the appeal and found that the applicant had locus standi to institute or defend legal proceedings relating the deceased estate.



C.M. v. B.M.B. Court of Appeal of Ghent (2003)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Following an assault by her husband (which was interrupted when he sustained a heart attack and had to be hospitalized), a woman temporarily moved into a small studio above the shop she rented and in which she worked. She brought divorce proceedings shortly after the assault, which resulted in a lower court restraining order on both parties. The husband was to be allowed to stay in the couple’s family house on the theory that this was the best solution financially and because the restraining order would make it impossible for the man to live in the studio in the rented commercial property as the wife worked there on a daily basis. On appeal, the wife requested that she be allowed to live in the family house, while the husband claimed that he should be allowed to stay there given his more limited financial means (a pension allowance). The husband did not deny the violence, but minimized the facts, while the wife claimed that there were already tensions before the assault and that her husband’s heart attack had saved her life. The Court of Appeal held that despite the absence of other witness declarations, the existence of a medical certificate supporting the woman’s claims as to the assault provided sufficient evidence of violence by the husband. The fact that the violence only occurred once did not change this and nor did the outcome of the pending criminal investigation. The Court held that, in accordance with the law of 28 January 2003 on domestic violence, the family home was to be assigned to the victim of such violence as no exceptional circumstances existed here to decide otherwise, despite an alleged imbalance in the financial means of the parties. The request by the wife for a maintenance allowance to cover the husband’s rent was rejected because the husband did not prove that the wife had a higher income and that the divorce proceedings would likely lead to financial compensation by the wife to the husband for the use of the family house.



B.M. v. R.C. Constitutional Court (2009)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined. The Civil Code was amended from mid-1976 by the Law of 14 July 1976 to remove this discrimination but contained transitional provisions requiring the old rules to continue to apply under certain circumstances. In the case at hand (in which the women failed to make a declaration within the old deadline), the Constitutional Court was asked if the old provisions still applied for marriages entered into before the amendments became applicable and dissolved after that date. The first court ruled that the deadline no longer applied (as there was no basis for it because men and women acquired equal rights to manage matrimonial property in 1976), but it took successive appeals, culminating in an appeal before the Belgian Supreme Court, to confirm this and annul the relevant transitional provisions.



Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea High Court of Lesotho (Constitutional Division) (2013)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief. Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act. Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother. The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child. Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution. The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship. It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages. The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief. The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.



Estate of Lerionka Ole Ntutu High Court of Kenya at Nairobi (Family Division) (2008)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters. After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance. The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate. The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom. The judge thus held that none of the daughters could inherit from their father’s estate. In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate. On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community. The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied. The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.



Mmusi v. Ramantele Court of Appeal of Botswana (2013)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them. The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs. The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child. The rest of the property was to be divided among the children, regardless of gender. The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under section 3(a) of the Constitution. In 2012, the High Court awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property. In 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.” This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana. The High Court decision is available here.



Individual Application of Mesude Kırıklı and Asil Akça Constitutional Court (2015)


Gender discrimination, Property and inheritance rights

Ms. Kirikli and Mr. Akça (the “Petitioners”) brought a land registration case against their uncle A.S requesting the annulment of a land transfer between their grandfather M.S. and A.S. The Petitioners claimed that M.S. had conducted a dubious transaction where he sold his land to A.S. in return for a very low price in order to prevent his late daughter’s children, the Petitioners, from inheriting the land. The Court of First Instance rejected their case on the grounds that whether M.S.’s motive was to cut his heirs off from their inheritance could not be proven and that it was reasonable that M.S., who had financial troubles at the time, sought to quickly relieve those troubles by selling his only asset for a considerably low price. The Court of Appeals agreed with the lower court, which led to the Petitioners’ application to the Constitutional Court. The Constitutional Court refused to hear the case because of a time limitation.



Re Namugerwa & 2 Others High Court at Jinja (2010)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The aunt of three children applied for guardianship of the children and the land they inherited following the death of their father. The Court was unable to determine some critical information, including whether the children had a surviving parent and the source of the funds the aunt used to care for the children. The Court was also concerned that the children’s mother might be alive and the automatic guardian, but that the aunt was chosen because she was related to the children’s male parent. Under most customary community traditions in Uganda, being a paternal ancestor would give the aunt guardianship priority over the mother. The Constitutional Court found these practices unconstitutional.



Seedis v. Chief Execution Officer & Schmuel Seedis Supreme Court (as an article 55 Special Tribunal) (1954)


Property and inheritance rights

A woman petitioned the article 55 Special Tribunal, which decides whether a case is of personal status and thus within the exclusive jurisdiction of a Religious Court, for review of the Rabbinical Court’s decision to allow her husband to receive rent from a property belonging to the plaintiff. The Rabbinical Court exercised jurisdiction pursuant to Article 51 and 53 of the Palestine Order in Council 1922, which states that “suits regarding marriage” or “matters of marriage” are within the exclusive jurisdiction of the religious courts. The Special Tribunal agreed with the Rabbinical Court’s decision to exercise jurisdiction over the suit, reasoning that articles 51 and 53 are not limited to questions regarding the existence of a marriage, but also include claims for the enforcement of rights derived from marriage, including property rights.



Lesia v. Lesia High Court of Lesotho (2013)


Domestic and intimate partner violence, Property and inheritance rights

Mrs. Lesia filed an application for relief against her husband, alleging that he abandoned his family, abused her, and was attempting to sell their home without her consent. She alleged that she built and paid for the home, and so sought to have her husband enjoined from selling it. The court issued an interim order granting the requested relief. The defendant disregarded the court order, continued his efforts to sell the home, and threatened to kill Mrs. Lesia if she kept interfering. To justify his rejection of the court order, the defendant claimed that he was not married to Mrs. Lesia, and that she had no right to file any applications against him. The court upheld Mrs. Lesia’s right to seek judicial intervention and sentenced the defendant to 30 days in jail for willfully disobeying the court’s order.



Petlane v. Petlane High Court of Lesotho (1999)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support. First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.



Sir Domtinet Bolngar v. Madam Nalem Louise Supreme Court of Chad (2005)


Divorce and dissolution of marriage, Property and inheritance rights

Sir Domtinet Bolngar brought a divorce claim to the civil tribunal of N’jamena on the basis of the prolonged rupture of their joint life and adultery committed by his wife. The Court pronounced a shared fault divorce and ordered an equal split of the couple’s joint goods. The Court of Appeal of N’jamena partially reversed the court’s decision and held that the divorce was exclusively caused by Sir Domtinet Bolngar‘s fault since the adultery of Madam Nalem Louise was never proven. The Court also awarded 3 million in damages to Madam Nalem Louise. Sir Domtinet Bolngar appealed the decision claiming he caught his wife red-handed at 5 am and that judges fail to assess the prejudice that he suffered. However the judges of the Supreme Court held that a simple narration of the facts did not constitute sufficient proof to charge Madam Nalem Louise with adultery, and therefore charged Sir Domtinet Bolngar with the court fees.



Amponsah v. Nyamaah Superior Court of Judicature (2009)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”



Esseku v. Inkoom Superior Court of Judicature (2012)


Divorce and dissolution of marriage, Property and inheritance rights

Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.



Stack v. Dowden [2007] UKHL 17 House of Lords (2007)


Property and inheritance rights

The parties began a relationship and the defendant bought a house in her sole name in which the parties lived together as man and wife and had four children. The defendant, who throughout their time together earned more money than the claimant, and sometimes almost twice as much, made all the payments due under the mortgage and paid the household bills. The parties then separated and the claimant left the property while the defendant remained there with the children. The claimant successfully applied to the judge for, inter alia, an order for sale of the property and an equal division of the proceeds. In this case it was held that where a domestic property is conveyed into the joint names of cohabitants without any declaration of trust there is an assumption that interest is equal. To prove interest is not equal, it must be proved that the parties held a common intention that their beneficial interests be different from their legal interests; to discern the parties' common intention the court should look at the parties' whole course of conduct in relation to the property, including more stereotypically feminine input such as redecoration, contributions to household expenses, etc and not just the initial contributions to purchase price, thus allowing some women more opportunity to claim an interest in their family home.



Attorney General v. Titselo Dzadze Ndzimandze (Nee Hlophe) and Others Supreme Court of Swaziland (2014)


Property and inheritance rights

The Attorney General appealed the High Court’s ruling that section 2(3) of the Intestate Succession Act is unconstitutional. Under section 2 (3) of the Intestate Succession Act of 1953, a surviving wife is limited to a child’s share or E1200 (equivalent to U.S. $109.37), whichever is greater, of the estate. In contrast, section 34 (1) of the Constitution, entitles a surviving spouse to a “reasonable provision” of the estate, which could exceed Intestate Succession Act’s limitation. The Supreme Court upheld the High Court’s ruling, finding that the Act was overtaken by the Constitution in 2005. The Supreme Court noted that section 34 (1) of the Constitution was deliberately drafted to be gender neutral to ensure that husbands and wives were afforded the same rights and protections to remedy gender-specific limitations like those present in the Intestate Success Act.



Attorney General v. Aphane Supreme Court of Swaziland (2010)


Gender discrimination, Property and inheritance rights

Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name. Section 16(3) of the Deeds Registry Act only permitted land to be registered by the husband and wife if the wife used her husband’s name; otherwise, the Act permits the land to be registered in the name of the husband only. Because the Section 16(3) of the Deeds Registry Act only affected the rights of wives and not husbands, the Supreme Court held that is invalid as it amounts to unfair discrimination and a violation of Section 20 and 28 of the Constitution.



Phiri v. Zulu High Court of Zambia (2012)


Divorce and dissolution of marriage, Property and inheritance rights

After fifty-four years of marriage, Mr. Phiri divorced Ms. Zulu in 2006. She was the mother of his nine children, and they shared a matrimonial home on a farm. Throughout the course of the marriage, Mr. Phiri and Ms. Zulu acquired real property, comprising the farm, other residential houses, and a bar, as well as several vehicles. However, during the divorce proceedings Mr. Phiri sold many of the houses and gave two of the properties to his children as gifts. He kept the proceeds of the sales for himself. The local court of first instance ordered Mr. Phiri to surrender one of the houses, a shop, a tavern and a sewing machine to Ms. Zulu. Unhappy with the outcome, Mr. Phiri appealed to the Subordinate Court, which heard the matter de novo. The Subordinate Court came to the same conclusions as the local court, although it ordered Mr. Phiri to surrender an additional sewing machine and K 6,000,000, as compensation for the property sold during the divorce proceedings, although no valuation of the latter had taken place. Ms. Zulu appealed to the High Court, among other grounds, on the basis that Subordinate Court should have also taken into account her contribution to the marital home (the farm) and that an assessment of the sold properties (or monies from the sale thereof) should have occurred. The High Court held that because the farm was acquired and maintained through the joint efforts of the husband and wife, Ms. Zulu had acquired a beneficial interest in the farm. Accordingly, the High Court ordered a valuation of the farm and directed Mr. Phiri to pay with one-third of the value to Ms. Zulu as a lump sum. Moreover, reasoning that the K 6,000,000 payment, related to the marital property sold during the divorce proceedings, was awarded without any basis whatsoever, the High Court further ordered a valuation of such property, with Ms. Zulu to receive one half of the assessed value.



Mukinga v. Fuller and Others Supreme Court for Zambia (2008)


Divorce and dissolution of marriage, Property and inheritance rights

Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.



Cole, et al. v. Dixon Supreme Court of Liberia (1938)


Gender discrimination, Property and inheritance rights

This case established that a wife’s dower is not an asset of her husband’s estate. After Mr. Dixon died intestate, his widow claimed that she held title to real property that had been conveyed to her as a deed of gift from her husband. The executor, appointed by the county, argued that the property was an asset of the estate because the right of dower accrues only after the death of the husband. The court disagreed, holding that “[the] inchoate right of dower is so vested in the wife as against the husband immediately on the marriage that no conveyance or act of the husband can deprive her of it,” including any creditors’ claims against the husband.



Williams v. Wynn Supreme Court of Liberia (1914)


Gender discrimination, Property and inheritance rights

This case established a precedent for property rights of a widow when her husband dies intestate. On appeal, the Supreme Court excluded from probate ten acres of land to which Ms. Williams claimed title. Ms. Williams’ husband died intestate and the executor of his estate, appointed by the Probate Court, included all real and personal property from the marriage in determining the assets of the estate. Ms. Williams claimed that she held title to ten acres of property that her husband had purchased through a third party, with title vesting in the wife. The executor argued, and the trial court held, that all property acquired through the husband could be made liable for his debts. The trial court relied upon the Constitution of Liberia, which states “The property of which a woman may be possessed at the time of her marriage and also that of which she may afterwards become possessed, otherwise than by her husband shall not be held responsible for his debts.” The court reasoned that this clause implies that property acquired through her husband could be held liable for his debts. The Supreme Court disagreed, holding that if a husband acquires property in the name of a third party, who becomes the medium through which title vests in the wife, the wife has an absolute right in that property and is not liable for the claims of the husband’s creditors. The court failed to apply this holding to personal property of the marriage, however, stating that instead personal property procured and owned by the deceased for the common use of the household is an asset of the estate.



Dlyon v. Lambert, et al. Supreme Court of Liberia (1884)


Gender discrimination, Property and inheritance rights

This early case established the precedent that a married woman may own and convey property independent of her husband. On appeal, the Supreme Court reversed the lower court’s decision denying ownership of a half-acre of land. Ms. Dlyon bought the property from a sheriff’s auction after it was repossessed for the payment of the owner’s debts. The Lamberts argued both that the previous possessor of the land never gained title of the property because he failed to obtain a fee simple deed so could not be used to pay his debts, and that even if he did have title, a married woman could not purchase land. On the first point, the court held that while the previous possessor did not have perfect title to the land, it could still be reached by creditors. On the second point, the court unambiguously declared that Ms. Dlyon had the right to purchase the property: “Under the Constitution, a femme couverte [married woman] may convey property she is possessed of otherwise than through her husband and this fact admits the inference that she may also bargain and buy property independent of her husband.”



Shalem v. Twenco Ltd Supreme Court of Israel (2006)


Property and inheritance rights

The appellant wife sought a declaration that under the joint ownership rule, she owned half the rights in a residential apartment that was registered in her husband’s name only, and her interest in the apartment was protected against attachment by her husband’s creditors. The court held that date spouses satisfy conditions of the joint ownership rule (sound relationship, united efforts) is the relevant date for “purely family assets” like the residential apartment in question. But not until a “critical date” in the marriage, or when the marriage faces a real danger to its continuation because of a serious crisis between the spouses, does joint ownership of other rights and liabilities crystalize. Here, because the appellant’s marriage had not reached such a “critical date,” her interest in the apartment was protected against attachment.



Midwa v. Midwa Court of Appeal of Kenya at Nairobi (2000)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.



Mtefu v. Mtefu High Court of Tanzania (1995)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.



Mtawa v. Risasi High Court of Tanzania (2001)


Property and inheritance rights

The appellant had lived with the deceased as husband and wife for nine years and given birth to two of his children. At his death, she asked that the estate not be distributed in accordance with Islamic law, which would have prevented her from receiving a share of the estate. The brother of the deceased challenged this, contending that she was a concubine who had no right to a share of the estate she had contributed nothing to amassing. The trial court registered a decision in favor of the appellant. It found that her relationship was the deceased fell under the presumption of marriage, and accordingly awarded her the house until either her death or marriage to another man. The brother appealed this decision and the District Court reversed the ruling of the trial court. The High Court found that the appellant and the deceased had achieved the status of a customary marriage. It also ruled that the deceased’s actions showed that he did not profess the Islamic faith and that Islamic law should thus not apply. It registered a decision that the appellant, through her contribution to the welfare of the household and family, was entitled to a share of the estate. The appellant received a half share of the house, while the other half was awarded to her children.



Kalulu v. Mahirima High Court of Tanzania (2011)


Gender discrimination, Property and inheritance rights

The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.



Mohamed v. Seifu Court of Appeal of Tanzania (1983)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.



In Re Estate of Lerionka Ole Ntutu (Deceased) High Court of Kenya at Nairobi (Family Division) (2008)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.



Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)


Gender discrimination, Property and inheritance rights

The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.



Metro N. Owners, LLC v. Thorpe Civil Court of the City of New York (2008)


Domestic and intimate partner violence, Property and inheritance rights

Ms. Thorpe was a victim of domestic violence. Her landlord sought to evict her from her apartment, alleging nuisance in violation of the lease. Ms. Thrope was the only person on the lease. Her landlord’s nuisance claim was based on a fight that had occurred between Ms. Thorpe and her husband. Ms. Thorpe moved for summary judgment based on the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”). Under VAWA 2005, “an incident of domestic violence will not be construed to violate a public-housing or government-assisted tenancy and shall not be good cause to terminate a public-housing or government-assisted tenancy if the tenant is the victim or threatened victim of domestic violence.” Ms. Thorpe argued that because her landlord’s allegations of nuisance were based solely on acts of domestic violence committed against her, he could not terminate her government-assisted tenancy. To prove that she was a victim of domestic violence, Ms. Thorpe provided three complaint reports that she had filed with the New York Police Department, along with a protective order she obtained against her husband from the New York City Criminal Court. The court granted Ms. Thorpe’s motion for summary judgment because she was a victim of domestic violence, and as such, VAWA 2005 prohibited her landlord from terminating her lease. The court reasoned that “VAWA’s goal is to prevent a landlord from penalizing a tenant for being a victim of domestic violence,” as Ms. Thorpe was here.



司法院大法官會議第410號解釋 (J.Y. Interpretation No.410) Supreme Court of Taiwan (1996)


Gender discrimination, Property and inheritance rights

A Supreme Court precedent from 1966 held that property obtained by a wife during the continuance of a marriage, but which cannot be proved separate property or contributed property, belongs to the husband. The amendment of the Civil Code in 1985 under the authority of Article 7 of the Constitution emphasizes gender equity and invalidates this Supreme Court precedent.

最高法院1966年的一個判例認為,妻子在婚姻存續期間獲得的財產,如果不能證明該財產是與原有財產分離的或妻子對其有貢獻,則該財產屬於丈夫。依憲法第7條規定,1985年修正後的民法強調性別平等,並不再援用最高法院此一判例。



Ephrahim v. Pastory and Kaizingele High Court of Tanzania (1990)


Gender discrimination, Property and inheritance rights

The respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to a man who was not a member of her clan. The next day, the appellant, Mr. Ephrahim, filed suit seeking a declaration that the sale of land by Ms. Pastory was void under the customary law that a woman has no power to sell clan land. The Court held that the customary law regarding women's property rights discriminated on the ground of sex in violation of CEDAW, the African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania Constitution.



Nkabane v. Nkabane High Court of Lesotho (1987)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman. The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.



Vaux v. Vaux High Court of Malawi (2007)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.



Uke v. Iro Court of Appeal of Nigeria (2002)


Gender discrimination, Property and inheritance rights

The Court of Appeal held that the Nnewi Customary Law that precluded a woman from giving evidence in land matters was unconstitutional because it discriminated against women. The respondent sued the appellant over a piece of land on Ikoponkwo, claiming that the appellant made an ingress into that land. The respondent claimed that he inherited it from his father who inherited from the respondent’s grandfather. The appellant argued that the respondent’s “Kingman,” who binds the respondent, gave the land to the appellant as a gift. The appellant argued that a woman cannot give evidence in relation to the title of the land. The court then rejected the appellant’s argument and held that under section 41(1) of the 1999 Nigerian Constitution, “any laws or custom that seek to relegate women to the status of a second-class citizen thus depriving them of their invaluable and constitutionally guaranteed rights are laws and customs fit for the garbage and consigned to history.” The court reasoned that because some of the laws and customs the appellant relied upon treated women as a “second-class” citizen, they must not be given credence. Under this holding, the court then decided to dismiss the appeal because it found no merit in the appellant’s arguments.



Andrew Manunzyu Musyoka (Deceased) High Court of Kenya at Machakos (2005)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married. The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act. It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR.



Masusu v. Masusu High Court of Botswana at Lobatse (2007)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.



International Case Law

The Case of Serife Yigit v. Turkey European Court of Human Rights (2010)


Property and inheritance rights

The applicant, ?erife Yi?it, is a Turkish national who was born in 1954 and lives in Gaziantep, Turkey. In 1976, she married Ömer Koç (Ö.K.) in a religious ceremony (imam nikah?). Ö.K. died on 10 September 2002. The youngest of their six children, Emine, was born in 1990. On 11 September 2003 ?erife Yi?it brought an action, in her own name and that of Emine, seeking to have her marriage with Ö.K. recognised and to have Emine entered in the civil register as his daughter. The District Court allowed the second request but rejected the request concerning the marriage. The applicant further applied to the retirement pension fund (Ba?-Kur) to have Ö.K.’s retirement pension and health-insurance benefits transferred to her and her daughter. The benefits were granted to Emine but not to her mother, on the ground that her marriage to Ö.K. had not been legally recognized. The applicant appealed unsuccessfully against that decision. Relying on Article 8 of the Convention (right to respect for family life), the applicant complained about the Turkish courts’ refusal to transfer her deceased partner’s social-security entitlements to her. In its judgment of 20 January 2009 the Chamber examining the case found that it was not unreasonable for special protection to be afforded only to civil marriages in Turkey, pointing out that marriage remained an institution widely recognized as conferring a particular status on those who entered into it. It considered that the difference in treatment between married and unmarried couples with regard to survivors’ benefits was aimed at protecting the traditional family based on the bonds of marriage and was therefore legitimate and justified. Accordingly, the Chamber held by four votes to three that there had been no violation of Article 8. On 14 September 2009 the case was referred to the Grand Chamber at the applicant’s request.



Case of the Yakye Axa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2005)


Property and inheritance rights

The Inter-American Commission on Human Rights alleged that, by not respecting ancestral property rights, the Government of Paraguay threatened the Yakye Axa Indigenous Community’s access to food, water and health care, and survival in violation of Articles 4 (right to life), 8 (right to fair trial), 21 (right to property) and 25 (judicial protection) of the American Convention on Human Rights. The court noted several specific examples of dangers faced by the women of the Community, including instances in which a woman was threatened by a man wielding a shotgun and another in which a woman was sexually exploited by State workers. The court noted that Paraguay was obligated to take into account the economic and social characteristics, special vulnerability, and customary laws, values and customs of indigenous peoples in order to effectively protect them, and found that Paraguay’s delay in recognizing the Community’s leadership, legal status and claims to land violated the Community’s rights to judicial protection, a fair trial, property, and ultimately a decent life. The court also found that the Community had a right to be granted legal status in order to take advantage of its members’ full rights as a people, and that Paraguay’s ongoing refusal to recognize that status was a violation of this right. As such, the court ordered that Paraguay provide the Community – “especially children, the elderly and pregnant women” -- with reparations, including compensation, food and water, sanitation, access to health care, and rightful title to their traditional territory.

La Comisión Interamericana de Derechos Humanos alegó que, al no respetar los derechos de propiedad ancestral, el Gobierno de Paraguay amenazaba el acceso de la Comunidad Indígena Yakye Axa a alimentos, agua y atención médica, y la supervivencia, en violación de los Artículos 4 (derecho a la vida), 8 (derecho a un juicio justo), 21 (derecho a la propiedad) y 25 (protección judicial) de la Convención Americana sobre Derechos Humanos. El tribunal tomó nota de varios ejemplos específicos de peligros que enfrentan las mujeres de la Comunidad, incluyendo casos en los que una mujer fue amenazada por un hombre con una escopeta y otro en el que una mujer fue explotada sexualmente por trabajadores estatales. El tribunal señaló que el gobierno de Paraguay estaba obligado a tomar en cuenta las características económicas y sociales, la especial vulnerabilidad y las leyes, valores y costumbres consuetudinarios de los pueblos indígenas para protegerlos de manera efectiva, y determinó que la demora de Paraguay en reconocer el liderazgo de la Comunidad, el estatus legal y las reclamaciones de tierras violaron los derechos de la Comunidad a la protección judicial, un juicio justo, la propiedad y, en última instancia, una vida digna. El tribunal también determinó que la Comunidad tenía derecho a que se le otorgara un estatus legal para poder aprovechar los plenos derechos de sus miembros como pueblo, y que la continua negativa de Paraguay a reconocer esa condición constituía una violación de este derecho. Como tal, el tribunal ordenó que Paraguay proporcionara a la Comunidad - “especialmente a los niños, ancianos y mujeres embarazadas” - reparaciones, incluyendo indemnizaciones, alimentos y agua, saneamiento, acceso a la atención médica y título legítimo de su territorio tradicional.



Comunidad Indígena Xákmok Kásek v. Paraguay Inter-American Court of Human Rights (2010)


Property and inheritance rights

The Indigenous Community Xákmok Kásek and its members sued Paraguay because of its inability to recover certain ancestral property. The Community claimed that this lack of access to property and possession of its territory, in addition to threatening the survival of the Community, resulted in nutritional, medical and health vulnerability to its members, causing, among other things, the death of pregnant women, children, and the elderly. The court found Paraguay in violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (personal integrity), 8.1 (Trial), 19 (Rights of the Child), 21 (Right to Property) and 25 (Judicial Protection) of the Convention, in relation to the obligations established in Articles 1.1 (Obligation to Respect Rights) and 2 (duty to adopt domestic law). The court ordered Paraguay to engage in a series of reparation measures, including returning land to the Community, damages and undertakings not to repeat such conduct and to assist the Community with rehabilitation. Among other measures ordered by the court, Paraguay must provide immediate “special care to women who are pregnant, both before birth and during the first months thereafter, and the newborn.”



Kell v. Canada CEDAW Committee (2012)


Gender discrimination, Property and inheritance rights

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K losing ownership of the property, in violation of Articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with Article 1. However, it found that Canada had not violated Articles 14(2)(h) or 15(4), as there was no evidence K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K and provide her with appropriate housing. It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims of domestic violence have effective access to justice.



E.S. and Others v. Slovakia European Court of Human Rights (2009)


Domestic and intimate partner violence, Property and inheritance rights

E.S.’s ex-husband S was convicted of ill-treatment, violence and sexual abuse against E.S. and their daughters and sentenced to four years' imprisonment. E.S. requested an interim measure ordering S to move out of the council flat of which they were joint tenants. The domestic courts dismissed her request, finding it lack the power to restrict S’ right to use the property under the relevant legislation. The appellate courts upheld that decision noting that E.S. would be entitled to bring proceedings to terminate the joint tenancy after a final divorce decision and, in the meantime, she could apply for an order refraining S from inappropriate behavior. The Constitutional Court subsequently held that E.S.'s rights were not violated as she had not applied for such an order. However, it held that the lower courts had failed to take appropriate action to protect E.S.'s children from ill-treatment. It did not award compensation as it considered it provide appropriate just satisfaction by a finding of a violation. Following the advent of new legislation, E.S. made further applications and two orders were granted: one preventing S from entering the flat; the other awarding her exclusive tenancy. In the meantime, E.S. had had to move away from their home, family and friends and her children had had to change school. The ECtHR concluded that Slovakia had failed to fulfill its obligation to protect all of the applicants from ill-treatment, in violation of Articles 3 and 8. The alternative measure proposed by Slovakia, i.e. an order restraining S from inappropriate behavior, would not have provided the applicants with adequate protection against S and therefore did not amount to an effective domestic remedy. The ECtHR ordered the Slovak Republic to pay non-pecuniary damages of EUR 8,000.



Kalucza v. Hungary European Court of Human Rights (2012)


Domestic and intimate partner violence, Property and inheritance rights

K’s partner Gy.B. acquired ownership of K’s ex-husband share of their jointly owned flat and had it registered as his place of residence. K sought to have him evicted when their relationship ended, lodged numerous criminal complaints for rape, assault and harassment but Gy.B.was acquitted on four occasions and was convicted on only two occasions, released on parole and ordered to pay a fine. On three occasions K herself was found guilty of disorderly conduct, grievous bodily harm and assault. She also faced a trespassing charge brought by Gy.B. because she had the flat's locks changed. During the criminal proceedings, K made two requests for a restraining order against Gy.B. and both were dismissed on basis that she was also responsible for the bad relationship. Civil proceedings concerning ownership of the flat were also suspended while Gy.B.’s violent behavior against her continued and a medical report was drawn up recording her injuries with an expected healing time of eight to ten days. The ECtHR found that the Hungarian authorities had not taken sufficient measures for her effective protection, in violation of Article 8. The Court noted that it had taken the authorities too long - more than one-and-half years - to decide on K’s first restraining order request, undermining the reason behind such a measure which was to provide immediate protection to victims of violence. Sufficient reasons for dismissing the restraining order requests were not given, the courts relying simply on the fact that both parties were involved in the assaults, ruling out the possibility of a victim having acted in legitimate self-defense in the event of a mutual assault. The Court commented that restraining orders could have been issued against both parties and ordered Hungary to pay K non-pecuniary damages.



Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)


Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.



Ato del Avellanal v. Peru Human Rights Committee (1988)


Gender discrimination, Property and inheritance rights

In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.



Reports

Hidden in the Mealie Meal (2007)


Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

Human Rights Watch Report on the Zambian government's failure to meet its international obligations to combat violence and discrimination against women. The report documents abuses that obstruct women's ability to start and adhere to HIV treatment regimens, including violence against women and insecure property rights (2007).



Women's control over economic resources and access to financial resources, including microfinance (2009)


Property and inheritance rights

UN Women 2009 World Survey on the Role of Women in Development (2009).