Compared to many of the cases in which we are involved (defending Monjeza and Chimbalanga against charges of buggery, challenging the coerced sterilization of HIV positive women), holding Zimbabwean perpetrators of violence to account in South Africa) a constitutional challenge to the disparity in women’s access to property may seem a little bland.
This case, which is being brought by the Women and Law in Southern Africa-Malawi, seeks to change the way courts divide property when a couple is getting a divorce. At the moment, courts in Malawi have complete discretion and often only take into account the monetary contribution each individual has made in determining who gets the property. This way of looking at division of property is a throwback to the British common law which has now been changed in England but has yet to be changed in Malawi. This means that men, who often are the primary breadwinners, are more likely to gain a greater share of the property upon divorce, often leaving women destitute or unwilling to leave abusive relationships for fear of poverty. This imbalance has repercussions beyond women’s rights. As we document in our amicus submission, the disparity also leaves women more vulnerable to HIV and less able to mitigate its negative effect.
This is one of the few cases which is being heard by the Constitutional Court in Malawi and its outcome could have a significant impact on the lives of women in Malawi.
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