Malawi: Property rights – one woman’s story of betrayal and loss

Blantyre, 17 August – As the Southern African Development Community (SADC) Heads of State prepare to meet in Maputo, Mozambique from 16-17 August, there are issues that hinder the attainment of gender equality in the region that they need to make bold decisions about.

One such issue is about marriage and property rights where women tend to lose out in the event that parties divorce. There are often contradictions between customary law and the constitution as property acquired during a marriage often belongs to the husband. When marriage ends, women are often left with nothing to show for years of hard work on behalf of their families. In a rendition of Whitney Houston and Deborah Cox’s ‘Same Script Different Cast,’ the men quickly move on with new wives with complete disregard of the people they have left broken.

Yet the 2008 SADC Protocol on Gender and Development requires that “State parties enact and adopt appropriate legislative, administrative and other measures to ensure that women and men enjoy equal rights in marriage and are regarded as equal partners in marriage. However, one case in Malawi demonstrates that Section 17 of Malawi’s Married Women Property Act, 1882 only considers property to be held “jointly” if a “direct, financial contribution has been made to its acquisition.”

The interpretation of Section 17 is in contradiction with Section 24 (1) (b) (i) of the Malawi Constitution that stipulates that women are entitled to “a fair disposition of property that is held jointly with a husband” upon the dissolution of marriage.

Theirs started out as an ultimate story of love, companionship, sacrifice and compromise. “When we got married in 1999, we did not even own chairs to sit on. We were simply a young couple, high on life and each other,” Talitha* begins her story.

Talitha’s husband, James* is a civil engineer and at the time of their marriage, he did not have a job. Talitha took care of most of the household expenses including supporting James’ extended family.

In 2000, the couple started building their dream home and Talitha provided the bulk of the financial resources required for their ‘project’. Later in the year, James found a job in a different town and he commuted everyday.
“I supervised the project in his absence, paid the workers and bought required materials. If there were mistakes to be attended to, I pointed them out and literally supervised the whole process. I did not mind because we were building our home.” Upon completion, we moved into the new house. Things began to change.

“It began with simple remarks. He would ask me what would happen to the house if he passed on. He said that he would not leave the house in my name because I would probably live in it with another man. I laughed it off.”

James became persistent that I bear him children and I became desperate to conceive. We had tried several times without luck. He proposed that we divorce on the grounds that I could not give him the heir he longed for. “Each time I started my period, I would spend some time in the toilet crying and blaming myself for not falling pregnant.”
Her eyes water, but Talitha does not cry. She blinks twice and then looks away. James would come home late at night and demand to know why she had not left his house. She claims he locked her out of the bedroom several times and he spent nights away from home.

At one point, she begged him to have a child with someone else then come back home.

Eventually, things fell apart. Talitha moved out of the house, armed with little else except hurt. She tried to get legal help and sought advice from women’s rights advocates. Somehow, the news reached her estranged husband. Lawyers working on her case either ‘excused themselves’ or made no headway.

“I got a copy of the Domestic Violence Act but did not understand its provisions. I knew nothing about marriage and property rights. I became too afraid to seek justice. When I tried to, the system asked me to show receipts as proof of my contribution to building our house. How could I keep receipts of the home we were building with my husband?”

Talitha managed to put all the hurt behind her and has since acquired a masters degree. She also has a good job. However, she feels strongly that justice should be served.

“James has since remarried and has a child with his new wife. They live in the home we built together. I fork out US$380 each month to pay my rent, which is frustrating because I own a house that someone else is living in. How do I claim get what rightfully belongs to me?”

Talitha is one of the many Malawian women who are suffering because of the country’s archaic property rights. Although Malawi’s Constitution says women should receive their fair share of joint marital property when a marriage ends, the reality is that women often cannot prove how they directly and financially contributed to that joint property.

Women and Law in Southern Africa (WLSA) director, Seodi White says the common interpretation of Section 17 implies that women make a less important contribution to marriage. A woman’s right to equality before the law is therefore violated. It also does not recognise the economic value of women’s work in the home.

WLSA and Malawian women have a major role to collectively speak against the application of the Married Women Property Act. It should be declared invalid or be interpreted in such a way that the non-economic and indirect contributions to marital property are recognised.

It is high time the constitution is amended for the equal division of marital property when couples divorce; otherwise the target of the SADC Gender Protocol to put in place legislation to ensure equitable share of property acquired during a relationship will not be met by 2015. Heads of State should also commit this August to repeal laws that hinder women’s access to justice.

Lerato Manyozo is a journalist based in Malawi. This article is part of the Gender Links Opinion and Commentary Service, special series on the 2012 SADC Heads of State Summit, bringing you fresh views on everyday news.