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WO R L D D E V E LO P M E N T R E P O RT 2 0 1 2
B OX 4.2
Property in marriage (and divorce)
Community of property. This regime typically gives protection to the wife in case of divorce, usually splitting marital property equally between the spouses. All property acquired during the marriage is owned equally between spouses (personal property owned before the marriage and property inherited or received as a gift to a spouse may remain the property of that spouse). In a universal community of property regime, property acquired by the spouses before the marriage also becomes joint marital property. This regime implicitly recognizes nonmonetized contributions to the household (including care, childrearing, household chores, or subsistence agriculture), and there is no requirement of proof of contribution. Under this regime some countries still give husbands the power to administer joint marital property during the marriage, depriving women of control (a leftover from the colonial codes). That is the case in 10 of the 43 countries surveyed that have had community of property as the default regime over the past 50 years—including 8 Sub-Saharan countries, Chile (the only country of Latin America to retain this provision), and the Philippines (which reformed its family laws but retained this provision) (box map). France removed its provision in 1985. Separate ownership of property. Spouses have ownership of any property they acquire during the course of a marriage. This regime protects women entrepreneurs, who can keep control of their productive assets on divorce. But it tends to penalize most women, because, unless legislated for, nonmonetized contributions are not recognized upon divorce (and women typically have fewer monetized contributions than men and thus fewer assets of their own during marriage). A few countries have added provisions to marriage laws that recognize women’s nonmonetized contributions (although in many countries these contributions are assumed to be less than men’s).
Of the 35 countries whose laws on separate ownership of property were surveyed, only 7 recognized nonmonetary contributions (including Bangladesh, Malaysia, Morocco, and Tanzania). Nonmonetary contributions have not traditionally been recognized by customary or religious law in Sub-Saharan Africa. In Muslim-majority countries, the practice of Mehr (dowry given to the bride on marriage) does provide for women who divorce, but the value in some cases can be too low to put women on an equal footing. Some countries have tried to increase its value, as in Bangladesh, or index it to inflation, as in the Islamic Republic of Iran, where women are also classified as priority creditors and their right to Mehr is superior to the claims of all other creditors. Some Muslim countries such as Morocco and Tunisia allow optional marital regimes of community of property, and the latter is the default regime in Turkey. Customary regimes. These regimes are the default in only four countries in Africa—Botswana, Burundi, Nigeria, and Swaziland. They are generally disadvantageous to women, with men traditionally administering marital property and with no recognition of nonmonetized contributions. Husbands usually have control over the assets during marriage. In some cases women even lose the property they brought into the marriage upon divorce. Multiple regimes. In some countries, multiple regimes are available, and each couple can select from among them. While women theoretically could choose the regime that offered them the most protection, most couples opt for the default regime. For instance, family law reforms in both Morocco and Tunisia have meant that couples can opt out of the separate ownership regime and chose the community of property regime, but in practice use of that option has been limited. Choosing the default marital regime is thus an important policy decision.
B OX M A P 4. 2. 1 Women in different parts of the world have different control over assets—Which matters in case of divorce or the husband’s
death
Community of property Community of property (with husband control) Separation of property and recognition of non-monetary contribution Separation of property, no recognition of non-monetary contribution Separation of property no recognition of non-monetary contribution (with husband control) Customary law & husband control No data
Source: WDR 2012 team estimates based on Htun and Weldon 2011b, Women LEED Africa database, and World Bank Gender Law Library.