A comparative study on women's property rights after divource: Statutory and Customary laws
Date
2013-11-11
Authors
Lungu, Grace Bubile
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Abstract
Married women have had a discriminatory history where their rights to own property are concerned. For instance, until the nineteenth century, English common law did not recognise any rights of a married woman to exclusively own property. This position was justified by the doctrine of the unity of personality. Despite the fact that in many instances, married women contributed directly or indirectly, the position remained unfavourable to women.It followed therefore, that the plight of the married woman pertaining to property rights extended to, and manifested itself on the dissolution of marriage. Women initially had little, if any at all, claim to family property afl;er divorce. The predicament was however, remedied by the passage of a number of legislation which recognised married women's property rights during matrimony and on divorce.In a number of English speaking Afiican developing countries, on the other hand, the advent of colonialism introduced a dual legal system of customary laws and imported English law operating concurrently. The problem of such duality has been the difficulty of reconciling the two legal systems.A proposal of women's property rights on divorce, the problem has been acute in that although English law recognises such rights, the indigenous customary laws do not. In Zambia, for instance, customary law is unwritten and uncertain. This nature of customary law, coupled with the practice of mixing the two legal systems which are divergent especially in the area of family law, has rendered the whole issue of women's property rights after divorce undefined.Subsequently, it will be the contention in this paper, that certainty and lack of
definition of women's property rights after divorce, together with the practice of the indigenous customary laws are of graver effects on the woman married under customary law when compared to her counterpart married under statutory law.The primary aim and objective of the research will therefore be to illuminate the fiandamental and distinguishing features of statutory and customary law pertaining to women's property rights after divorce in an attempt to discover how best a unification of the two Zambian systems may be achieved, so as to ameliorate any inequalities, injustice and hardships likely to ensue.This paper will begin with an introduction which will focus on tracing the historical development of Zambian laws appertaining to women's property rights after divorce. This will include the major developments introduced by various legislation. Further, focus will be placed on tracing the influence of traditional society in women's property rights after divorce and its development to modem society. After discovering the relevant historical developments of both statutory and customary laws, chapter two will analyze specific provisions of statutory law and varying customary law relating to the procedure of property disputes. The analysis will be made with a view of pointing out the common factors in the customs which will in turn highlight the contrast with the statutory provisions.Consequently, chapter three will emphasise the influences, inequality and hardships which are likely to ensue from the varying laws. Further, this chapter will address the contemporary inconsistencies in the application of customary law to an unauthorised and whimsical deviation towards statutory methods. Subsequently, this will lead us to the concluding chapter.The final chapter will wind up the comparative study by making conclusionary remarks, observations and recommendations on how best to achieve the desired results vis a vis the unification and codification of the law on women's property rights on divorce.
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Keywords
Women's rights-Zambia , Rights of Property-Zambia