PROPERTY RIGHTS

The United Nations General Assembly adopted the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) in 1979. This landmark treaty was the first convention to comprehensively address women's rights within political, cultural, economic, social, and family life. In numerous countries, the treaty has become a proven and effective tool for improving equity. As of October 1999, 165 countries have ratified the Convention. The U.S. is the lone industrialized democracy and one of only a handful of countries yet to ratify CEDAW.

Women's equality in accessing property-individually, through inheritance, or through marriage-is fundamental to women's substantive equality and to women being able to participate fully in the economic and social lives of their country.

U.S. Law-Legal Autonomy

• The Equal Protection Clause of the Fourteenth Amendment has been used to establish that women have a legal identity that is separate from, but equal to, that possessed by men. Therefore, statutory provisions requiring a husband to concur in, or consent to, his wife's property transactions or contracts are unconstitutional.
  
  
• The Equal Credit Opportunity Act is a federally-enacted statute which prohibits discrimination on grounds of sex or marital status with respect to all aspects of a credit transaction including access to commercial credit, retail store credit, credit card companies, banks, and other lending institutions. It is binding on states under the Supremacy Clause, which enables federal legislation to override state law when they are in conflict.
  
  
• In 1997, women-owned businesses constituted just over a third of all businesses and only a quarter of businesses with employees. Despite legal equality women are a minority presence in the business world, which indicates that a gap remains between their legal capacity to administer and acquire property and their realistic ability to exercise that capability.
  
  
• The number of woman-owned businesses is increasing at more than double the rate of all other businesses and their receipts are almost triple those of other businesses. Yet, although nearly three quarters of women-owned firms access credit, only 32% use commercial banks as a source of financing. 60% use non-traditional sources such as finance companies and personal credit cards. Only 1.7% of federal prime contract dollars went to women-owned firms in 1996. All of which indicates the discrepancy between law, practice, and the ability of women to access credit.

How CEDAW Would Help

• CEDAW would reinforce compliance with already existing federal obligations and laws granting women legal autonomy and the right to non-discrimination in matters of property and contract.

U.S. Law- Marital Property

• Nine states have adopted varying versions of the 'community property approach' that is premised on the inherent equality of husband and wife. Community property is generally comprised of all earnings, property acquired from earnings, and debts incurred during the marriage. From the moment it is acquired, the husband and wife own an undivided one-half interest in community property.
  
  
• In all other states, each spouse does not automatically acquire an equal interest in property obtained during marriage. Property interests depend upon each state's constitution and statutory provisions, or an express agreement between the spouses.
  
  
• Despite the principles of equality and equity embodied in the letter of the law, in practice judicial discretion usually results in two-thirds of the assets going to the higher wage earner (traditionally the husband) and one-third to the other spouse (traditionally the wife).
  
  
• In 1996, 42.3% of female-headed families with children were living below the poverty line, compared with 8.5% of families in which males were present, which indicates that the end of a relationship has an adverse impact on women. Property laws that either create or ignore such an impact contribute to the economic marginalization faced by women.

How CEDAW Would Help

• CEDAW would give trial judges guidance in exercising their judicial discretion by providing them with a useful framework to fulfill their existing obligations to fairly and equitably divide marital property. CEDAW would also assist courts and legislatures to recognize and address the fact that women, whether legally married or not, are more likely than men to face poverty as the result of a relationship ending. This adverse impact is discriminatory, in so far as it is connected to property distribution laws that do not achieve equality.

U.S. Law-Inheritance

• Inheritance laws are governed by statute. In cases where a person dies without a will, succession expressly favoring the male line over the female would be considered unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
  
  
• In community property states, upon the death of one spouse, whether or not a will exists, the surviving spouse automatically owns half of all property acquired during the marriage, including pension benefits.
  
  
• In all other states, statutes have granted each spouse the right to claim one quarter to one half of the other spouse's estate, regardless of what the deceased's will specifies.
  
  
• In non-community property states the right to claim a portion of the deceased's spouse's estate is only accessible through a legal challenge to the will. Given that women aged 65 and over are almost 3 times as likely to be widowed than men, and that they are more than twice as likely to be living in poverty, a requirement of litigation places an unequal burden on elderly women, which arguably contributes to the feminization of poverty among the elderly.

How CEDAW Would Help

• CEDAW would help policy makers to acknowledge and address the connection between women's poverty and existing inheritance legislation.

How CEDAW Has Improved the Lives of Women and Girls around the World

• In 1997 the Georgian Republic enacted a Civil Code which expanded the equality of property rights and the obligations of spouses, including the recognition of joint property during marriage.
  
  
• Since 1989, legislation in China has highlighted the equality between men and women. The Women's Act, for example, guarantees joint ownership in marital property and equal rights to property inheritance.
  
  
• In 1990, Colombia legally recognized de facto marriages, and the ensuing property rights and obligations.

FOR ADDITIONAL INFORMATION, CONTACT THE CO-CHAIRS OF THE WORKING GROUP ON THE WOMEN'S HUMAN RIGHTS TREATY:
Pat Rengel, Amnesty International, U.S.A.
tel: (202) 675-8577, fax: (202) 546-7142, E-Mail: prengel@aiusa.org,
Website: http://www.amnestyusa.org/commit
Kit Cosby, Bahá'ís of the U.S.
tel: (202) 833-8990, fax: (202) 833-8988, E-Mail: usnsa-oea@usbnc.org,
Website: http://www.us.bahai.org/cedaw