Definition:
Indicator 5.a.2 assesses the extent to which the national legal frameworks (including customary law) guarantee women’s equal rights to land ownership and/or control.
The indicator “measures” the level to which a country’s legal framework supports women’s land rights, by testing that framework against six proxies drawn from international law and internationally accepted good practices , in particular the Convention on the Elimination of Discrimination Against Women (CEDAW) ratified by 189 countries, and the Voluntary Guidelines for the Responsible Governance of the Tenure of Land Fisheries and Forestry (VGGT) endorsed unanimously by Committee of Food Security (CFS) members in 2012.
The six proxies through which indicator 5.a.2 is monitored are the following:
Proxy A: Joint registration of land is compulsory or encouraged through economic incentives
Proxy B: Compulsory spousal consent for land transactions
Proxy C: Women’s and girls’ equal inheritance rights
Proxy D: Allocation of financial resources to increase women’s ownership and control over land
Proxy E: In legal systems that recognize customary land tenure, the existence of explicit protection of the land rights of women
Proxy F: Mandatory quotas for women’s participation in land management and administration institutions
Concepts:
The indicator tracks progress on legal reforms that guarantee women’s land rights (including customary law) in terms of ownership and/or control.
The customary dimension of the indicator is very important because in many contexts in which customary law prevails, women’s land rights tend to be denied or insecure. However, the enormous diversity of customs and social norms that govern customary land among and within countries and their unwritten nature, create a significant challenge for assessing whether the proxies are present in these systems. Therefore, the customary dimension will only be considered in the case it has been incorporated the legal system.
Finally, the indicator refers to ownership and/or control of land which are two critical but different dimensions of women’s land rights. Land ownership refers to the legally recognized right to acquire, use and transfer land property, while control over land is associated with the ability to make decisions over land.
Key definitions are the following:
Land
Land is defined as all immovable property – for instance the house, the land upon which a house is built and land which is used for other purposes, such as agricultural production. It also encompasses any other structures built on land to meet permanent purposes. Legal frameworks commonly use the terms ‘immovable property’ or ‘real property’ when referring to land.
Land ownership
Land ownership is a legally recognized right to acquire, use and transfer land. In private property systems, this is a right akin to freehold tenure. In systems where land is owned by the state, the term “land ownership” refers to possession of the rights most akin to ownership in a private property system – for instance, long-term leases, occupancy, tenancy or use rights granted by the state that are transferrable and are granted to users for several decades (for instance 99 years).
Control over land
Control over land is the ability to make decisions over land. It may include rights to make decisions about how the land should be used, including what crops should be planted, and to benefit financially from the sale of crops.
Customary land tenure
Customary land tenure is defined as the bodies of rules and institutions governing the way land and natural resources are held, managed, used and transacted within customary legal systems.
Customary legal systems
Customary legal systems are systems that exist at the local or community level, that have not been set up by the state, and that derive their legitimacy from the values and traditions of the indigenous or local group. Customary legal systems may or may not be recognized by national law.
Legal and policy framework
The legal and policy framework comprises a set of publicly available legal and policy instruments governing land and family matters in force when conducting the assessment, including the Constitution, primary - and secondary legislation and policies. It includes customary legal systems where they have been recognized by statutory law.
Personal laws
Personal law is defined as a set of codified rules and norms applying to a group of people sharing a common religious faith about personal matters. These laws usually cover family relations, marriage, and inheritance. The term can be used interchangeably with ‘religious laws’.
Primary legislation
Primary legislation refers to (i) acts or statutes that have been formally adopted at the national level following the official parliamentary procedure for the passage of laws (in parliamentary systems); (ii) other acts at the national level with the force of law, such as decree-laws and legislative decrees and otherwise (in parliamentary systems); (iii) other legal instruments that have been formally endorsed by a law-making body, for instance presidential and royal orders or presidential and royal decrees (in non-parliamentary systems or systems where law-making power lies in an additional institution to the parliament). In all cases, primary legislation must have the force of law, be binding. For this assessment primary legislation includes the Constitution.
Secondary legislation
Secondary legislation includes subsidiary, delegated or subordinate legal instruments that have the force of law, are binding, and shall not be in contradiction with primary legislation. They are usually passed by the executive, such as national regulations, rules, by-laws, determinations, directions, circulars, orders, and implementing decrees.
Joint registration
Joint registration is where the names of both spouses or both partners in an unmarried couple, are entered into the land registry as the owners or principal users of the land being registered. Joint registration signifies a form of shared tenure over the land – usually either a joint tenancy/occupancy or a tenancy in common). In legal systems which include a framework for land titling, joint registration is commonly referred to as joint titling.
Unmarried couples
Unmarried couples are defined as couples who live together (cohabit) in an intimate relationship, but who are not married following the marriage law of the country. It refers to couples who were married under custom or religious laws, where such marriages are not recognized or do not comply with the requirements of the formal law. It may also refer to relationships that are recognized by the state but that are not considered a marriage – for instance a civil partnership and a de facto relationship that is registered with the state. The term ‘unmarried couples’ is often used interchangeably with ‘de facto unions’, ‘consensual unions’ or ‘irregular unions’. The members of an unmarried couple are referred to as ‘partners’.
Land transactions
Land transactions for the methodology are major land transactions, specifically the sale and encumbrance (mortgage) of land.
Inheritance
Inheritance is defined as property passing at the owner's death to the heir or those entitled to succeed.
Deceased’s estate
The deceased’s estate encompasses the legal rights, interests and entitlements, to property of any kind (not only land) which the deceased spouse or partner enjoyed at the time of death, less any liabilities. Depending on the legal system, marital property may be excluded fully from the calculation of deceased’s estate, or the deceased’s 50% share in the marital property will be included.
Equal inheritance rights for sons and daughters
Equal inheritance rights for sons and daughters require the law on intestate inheritance to either be gender-neutral or provide for both an equal rank and equal shares in the inheritance for brothers and sisters (or daughters and sons).
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