6.2.6 Non-registration of land to avoid
inheritance rules
There is
evidence in some Muslim communities that individuals keep their property
outside the formal land registration system, because of the costs involved and
to avoid giving women their allotted shares under the Islamic inheritance
rules.
6.3 POST-INHERITANCE ADJUSTMENTS
6.3.1 Women, law and custom
Inheritance
law often lies at the heart of discussions about gender equality and women's
property rights.
6.3.2 Consolidation of property
In a process
known as consolidation, the division of an estate into fractional shares may be
followed by a series of sales and exchanges designed to reduce the number of
co-owners. It is women who
usually exchange their rights in land for movable property, cash or gold and it
is women in the main who decide to give up their fractional shares,
particularly in land.
6.3.3 Renunciation of inheritance rights
There is a
widespread practice after the inheritance shares are distributed whereby a
person, typically a woman, may renounce her inheritance rights (tanazul). While gender rights’ advocates are
justifiably concerned over women being forced to renounce their limited
property rights, the reality may be far more complex. It may be a choice over
empowerment through property or enhanced family support.
6.4 LEGAL REFORMS TO INHERITANCE SYSTEMS
6.4.1 Codification and secularisation
There has
been little legislative interference with the compulsory inheritance rules and
daughters continue to enjoy only half as much as their brothers from the estate
of a parent, which is a cause of concern for some women's organisations.
6.4.2 Changes regarding adopted children,
grandchildren and others
One example
of a change in inheritance law in several countries, though subject to juristic
debate, which has been widely justified on the basis of the Qu'ranic "verse of bequest" and
social practice is the obligatory bequest for orphaned grandchildren.
6.4.3 Islamic inheritance systems and the
equality debate
The
differential treatment on the basis of gender regarding inheritance shares, on
the face of it, violates international human rights. A number of NGOs and
liberal personalities in Muslim countries have called for equal inheritance
rights. However, a more dominant position is the general position, even from Muslim
women, that what God has ordained for shares cannot be changed.
6.4.4 Opportunities for empowering women
The Islamic
inheritance rules despite their apparent discriminatory nature, where
implemented in letter and spirit and construed holistically, provide a solid
starting point for women – and other members of the family - in asserting the
full range of their property rights.
6.5 STRATEGIES FOR EMPOWERMENT THROUGH
INHERITANCE RIGHTS
6.5.1 Demystify Islamic inheritance
General
knowledge of the basic legal system pertaining to inheritance appears to be
embedded within Islamic communities, but the specific rights are generally not
publicised, and certainly not widely articulated or agitated. This is due to several factors, the
widespread illiteracy of particularly Muslim women in some societies, a
perception that the rules are complex, which is deliberately reinforced by
authority figures and the marginality of certain categories within families and
communities. Though inheritance is only a part of the wider Islamic property
regime, inheritance rules are presented as a complete divinely ordained code
without room for compensation through other tools. With regard to entitlement
of shares and the impact of estate planning, consolidation of property and
renunciation of shares, those involved and affected must have the fora and
opportunities to discuss and deal with the impact of their decisions.
6.5.2 Promote Islamic reasoning (ijtihad)
Islamic
inheritance is closely associated with Islamic identities and social structures
and a general concern about secularisation as a threat to Islam. As such, there
is widespread resistance against anything other than very limited state
intervention into this area, even amongst women. The reforms – towards
materialising the egalitarian and distributive aspects of Islamic law- have to
come primarily from within the community and be compatible with the Islamic
frameworks. The main features of the inheritance rules appear to be clear-cut,
particularly when they are deemed to be clear,
and unambiguous (qat’i) and not readily open to any modification. However, any set of Islamic principles
are to be re-interpreted and applied in the backdrop of the objectives of
Islamic law (maqasid e sharia). Despite the limited forays into the
realm of Islamic inheritance rules, the return to first principles and
continuing development of these principles suggest that several inheritance
practices may in the near future be subjected to ijtihad (interpretation as an Islamic
jurisprudential tool) leading to newer forms of interpretation.
6.5.3 Facilitate social legitimacy
Inheritance
rules have to be understood within the myriad systems of property relations,
including such matters as dower and maintenance, and within inheritance
systems, of legitimate methods of estate planning. Legal techniques, notably
lifetime transfers and the establishment of family endowments, have developed
to enable individuals to determine the devolution of their property to meet
perceived social needs, to avoid fragmentation of agricultural land and family
businesses. In some
communities the lifetime transfer is seen as a means of adjusting for
discrimination against women under the inheritance rules, but in other contexts
to prevent family property moving out of male control or into the hands of
'outsiders'. Where these
‘legal’ techniques serve to achieve progressive and inclusive results, efforts
to enhance their social legitimacy must be facilitated.
6.5.4 Resist abuse of consolidation and
renunciation
The transfer
of property through inheritance is only one point in the cycle. The subsequent
processes of consolidation and renunciation of the inherited property must also
be queried. Given the propensity towards consolidation of family property and
its smooth intergenerational transfer, property- particularly farmland or a
family business- is likely to be transmitted and retained in the hands of
men. The social
convention being to the effect that, men as the producers should manage and
control both the business and the land it sits upon. Moreover there are compelling
pressures on women, of affection, notions of honour and shame, and economic
necessity, which have a bearing on whether they will assert a claim upon a
share in an inheritance, agree to sell a share, whether for cash or
symbolically, or whether to renounce a share. These are not Islamic principles but
socio-economic and cultural practices which have to be tested for their utility
and legitimacy, in view of the evolving family and community structures.
6.5.5 Promote Security of land tenure
Strategies
designed to enhance security of tenure and to relieve poverty within Islamic
societies, inheritance law and inheritance systems, particularly as they
pertain to women, should not be regarded as a peripheral matter. Inheritance is an essential component
in access to land. The
inheritance process is not dependent on formal legal decrees on inheritance
which are only one element of the picture. The specifics of the inheritance
system in any context must be demystified, including the dominant legal
techniques of estate planning in that context, the motivation for using those
legal techniques and the social meanings attributed to the use of estate
planning methods. However,
in many political and social contexts the full implementation of the inheritance
rules under Islamic law could be a realisable goal and a good starting point to
extend rights in land to less powerful members of society.
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