How History Changed the Property Rights of Women

Private Property South Africa
Anna-Marie Smith

Views on property rights and ownership for women have forever been altered by history. In modern day terms property rights are about the legal right to acquire, own, sell and transfer property, collect and keep rents, keep one's wages, make contracts, bring lawsuits, and, if seeking divorce, maintain some of the marriage asset.

And in South Africa, formal law provides single women and men with equal rights to property ownership, while marriage and co-habiting contracts determine specific legal agreements between partners.

Going back in history, it was not uncommon for a woman's property to have been controlled by her father. And, if she had entered into marriage, property was controlled by her husband. Before specific laws were passed to improve the rights of woman, husbands had both legal ownership as well as managerial rights over a wife's personal property.

Throughout Africa as well as within South Africa widows from rural as well as urban regions are known to lose control over their matrimonial property as the result of customary practice in traditional cultures.

The Landesa Rural Development, supported by several foundations including the Clinton Global Institute, Bill and Melinda Gates Foundation, Google and Nike Foundation, promotes women’s property rights through the Institute’s Centre for Women’s Land Rights. The institute refers to women’s property rights as an essential factor as they are responsible for producing nearly half of the food grown in the developing world.

In rural areas and in the absence of secure rights to the land they farm, customary law denies women equal rights to access, inherit, or own property held in families. Should they lose their only link to a piece of land that in most cases could be a husband, father or brothers, they are exposed to an increased risk of losing their source of food, income, and shelter for their families and themselves.

Formal law as opposed to customary law serves to strengthen women’s property rights, particularly in countries where the gap between customary and formal law is closing. What has lead to the promotion of women’s land rights are research studies showing that when women have secure rights to their land, they are better able to provide for their family’s needs and in particular that of young children.

Elsewhere in the world, women’s property rights have been key concerns when different legal systems were implemented, from the traditional common laws of England, to the US state law.

As far back as 1839, the British "merger of identities" doctrine law specified that women’s property was retained under the control of a husband, who was also responsible for governing family affairs. This law was also applied in the early years of the US.

History was made when Mississippi in the US became the first English colony to challenge this particular law. When in 1839, the Married Women's Property Act, then dealing with transfer of real property in slaves from father to daughter, was passed so that plantations would not be divided among son-in-laws.

In 1848 the US state of New York became one of the first states to grant women any rights in personal and real property. Momentum gathered fast and by 1900 married women in every state had gained substantial control over their property.

South African property law protects those who inherit land that has been owned in families for generations, regardless of gender or age, through various provisions as applied in family trusts.

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