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gender equality
fact that most people
court cases
inheritance
Feminism On Deceased Estate
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“Until ‘divorce’ do us part” A feminist legal challenge of matrilineal neolocal widows in realizing the right to property.

It is the case that that under the matrilineal system of marriage the husband has a duty to build a house (herein after ‘the duty’). This duty it is well established under matrilineal customary law and that it prevails even where one has divorced. The formal law does recognize this aspect of the duty to build a house as shown by a number case law. This broadly ensures that a woman has security of property, that is to say real property, which is a great tool for economic empowerment.

The position under custom is that should the husband die, the widow typically keeps the house and land, plus items judged to be women's essentials. The problem however crops up if the family was residing neolocal. It is observable that under the law the duty however does not subsist when the husband dies. Therefore because of this lacuna people are able to come and misappropriate the deceased property.

However there have been less court cases of property grabbing. This is due to sensitization initiatives on the evils of property grabbing. Regardless of the new Wills and Inheritance Act, 1998 there are still cases of many people suffering. The situation is further compounded by the fact that most people die intestate thus the property’s succession is done using the Act and not necessary custom as prevailing at a particular time.

There are going to be reforms in the law of succession in Malawi in the name of a new Act named Deceased Estate (Wills, Inheritance and Protection) herein after ‘the Act’. This has been said to be an improvement from the Will and Inheritance Act, 1998 and that it is progressive in ensuring gender equality.

There are several developments that have been experience in the property law regime in Malawi especially as implacable to family law. The Constitution uplifts the property rights as human rights. Section 28 of the constitution further holds that an individual can acquire and dispose property as he wills. In section 24 of the Constitution recognizes separate ownership of property in marriage and that only property held jointly by the couples can be distributed upon dissolution of marriage.

The paper notices a lacuna in the law, in that Malawi as a legal pluralism society, provides on one hand , the duty for the husband married under matrilineal system to provides a house to the wife during the subsists of the marriage as well as during divorce. However on the other hand the same law is taking away this very essential duty from matrilineal women, especially women in neolocal residence, in that the husband’s duty to build a house does not subsist after his death.


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