Extract from a message to opening plenary of the 2001 conference by Mrs Graça Machel
....My continent Africa has many widows, of all ages, in all conditions and degrees of poverty, isolation and need. In my own country Mozambique, the civil war left a legacy of hundreds and thousands of widows and fatherless children. The HIV/AIDS pandemic has devastated family life across the continent leaving uncountable numbers of orphans and placing an additional burden on older women, many of them widows, who have to take on the care of sick and dying children and grandchildren in need.
These brave and resilient women symbolise a situation which cuts across culture, religion and nationality.
CEDAW Article 16 Equality in Marriage and Family Law
State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure on a basis of quality of men and women
a) The same right to enter into marriage
b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent
c) The same rights and responsibilities during marriage and at its dissolution
d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children …
e) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children . . .
f) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation
h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
Comments & Questions
Comment Article 16 addresses discrimination against women in the private spheres of marriage and the family. It is perhaps in these spheres that women's unequal status with men is seen most sharply. Many States maintain discriminatory laws, while even in those in which legal equality in these spheres exist, the roles women play which are not shared by men, are regarded as inferior. Women's unequal status in marriage and the family is frequently based on traditional, customary and religious attitudes that confine women to particular roles. These attitudes are deeply entrenched and resistant to change. Indeed, many States Parties have entered reservations to article 16, thereby declaring that they are unprepared to remove discrimination in this context.
9. Do women have the same rights as men to own, acquire, manage and dispose of property? If the husband is declared bankrupt, how are the rights of the wife affected?
12. On dissolution of marriage what are the rights of the wife with respect to property? Are these the same as the rights of the husband?
14. How is property divided after divorce? Is a woman’s work in the home, or her unpaid agricultural labour, counted as a contribution towards the value of the property? Is this work reflected in the division of property on divorce?
23. Who is the natural guardian of the child? Do women have the same rights as men in matters of guardianship, wardship, trusteeship, and adoption of children?
24. On divorce or relationship breakdown who usually acquires custody of the children? After death of a husband? Do the practical results in custody matters differ from the law as written?
37.Legally and in practice, what are the rights and obligations of widows? In what way, if any, do they differ from the rights and obligations of widowers? Are widows required to perform any rite of purification on the death of their husbands? If so, do widowers have to perform the same rites? What is the social status of widows? Is this status different from that of widowers?
38. Do widows and daughters of a deceased man have a legal right to inherit land and other property if there is no will? If they have such a right is it equal to that of widowers and sons? Can a widow or daughter receive property under a will? If so, is there any legal or customary constraint on a testator bequeathing the same share of property to widows and daughters as to widowers and sons?
39. Is the levirate (widows having to marry the deceased husband's brother) practised by any group in the country?
The following are taken from the General Recommendations adopted by the Committee on the Elimination of Discrimination against Women at various sessions:
13th session (1994) article 16 (1) h
Inheritance
34. Reports of States Parties should include comment on the legal or customary provisions relating to inheritance laws as they affect the status of women as provided in the Convention and in Economic and Social Council resolution 884 (XXXIV), in which the Council recommended that States ensure that men and women in the same degree of relationship to a deceased are entitled to equal shares in the estate and to equal rank in the order of succession, has not been generally implemented.
35. There are many countries where the law and practice concerning inheritance and property results in serious discrimination against women. As a result of this uneven treatment, these women may receive a smaller share of the husband's or father's property at his death than would widowers and sons. In some instances, women are granted limited and controlled rights and receive income only from the deceased's property. Often inheritance rights for widows do not reflect that principles of equal ownership of property acquired during marriage. Such provisions contravene the Convention and should be abolished.