This base line study has been undertaken to explore the extent to which the current environment in the West Bank is conducive to enhancing women’s rights, in recognition of the growing interest and efforts to promote and strengthen inheritance rights in Palestine.
The research team has faced a high level of unresponsiveness among the Religious “Shari’a” court and a shortage of data about cases of inheritance. Moreover, the cultural values and the women’s fear of losing their families’ support was another reason, we believe, many did not give their stories about their struggle to take their inheritance right. Consequently, the research team had to refer to some literature that dealt with the issue with no credible statistics that could give a thorough indication of the problem.
The Palestinian Context
Women make up almost 50% of Palestine’s population. It is Palestinian women who comprise large numbers of students enrolled in primary (49.4%), secondary (53.1%), and tertiary education (54.4%).
The context of Palestine possesses a special nature due to the socio-political and economic situation which impacts the larger community in general. Specifically, Palestinian women face two major types of obstacles to their rights: those arising from within their own society/tradition and those that result from the current the political situation around them. Within the domestic scene, women are subjected to restrictive personal status laws, which retain discriminatory provisions related to marriage, divorce, and child custody. Domestic abuse remains a significant problem, and violence against women has increased in recent years.
Discriminatory laws and traditions also affect women’s inheritance, alimony, and employment opportunities, thereby reducing their economic autonomy and making them more vulnerable to poverty than men. Furthermore, some segments of society seem to be growing more conservative and returning to traditional values. These facets comprise women’s economic empowerment: economic opportunity (e.g., expanding employment and entrepreneurship, improving access to finance); legal status and rights (e.g. improving women’s property, inheritance and land rights); and voice, inclusion and participation in economic decision-making. [UNDP 2010]
NONDISCRIMINATION AND ACCESS TO JUSTICE
The general legislative framework in the West Bank and Gaza has not dramatically changed since the Declaration of Independence. Personal Status Law is still considered one of the most important laws for women, strongly linked with their daily lives, especially in the domestic sphere. The majority of women in Palestine are housewives whose rights and role are profoundly effected by Personal Status Law as it interacts with the cultural context. Provisions of the laws also bear on employment rights and related factors. Having access to and control over financial resources in the family can impact access to education and professional development, which in turn can be key to unlocking opportunities for job acquisition, shared decision making, political participation, and the necessary financial resources that underpin these functions. Access matters.
Palestine’s unstable context and frozen legislative counsel have precluded discussion, let alone revision, of the many laws that affect women’s lives, citizenship law and the penal code not excepted. Until the establishment of a Palestinian State, Basic Law acts as a temporary constitution. Article 9 of the Basic Law designates all Palestinians “equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability.” Personal freedom is a “natural right”, according to article 11, which “”shall be guaranteed and may not be violated.” Yet article 4 stipulates that Shari’a (Islamic Law) is a main source of legislation. This is problematic because conservative interpretations of Islamic principles can create potential discriminatory provisions despite the Basic Law’s guarantees. Laws either do not penalize gender discrimination or are unenforceable due to weak institutional mechanisms. Even more, laws in Palestine come from not only the PA but Israel, Egypt, and Jordan, making it challenging for women’s rights activists to focus their advocacy efforts. Laws from four different origins can interact unfavorably with culture, with inadequate support from legal structures. Women’s rights activists have difficulty navigating the resulting confusion and focusing their advocacy efforts.
Discrimination in the Personal Status Law and its impact on Palestinian society
Palestinian Muslim women are subject to the Jordanian Personal Status Law of 1976, which is derived from the 1917 and 1951 laws of the same name; both codes are based on the Hanafi school of Islamic Jurisprudence. No amendments have been introduced to either code, despite changes based on alternative (religious) interpretations enacted in Egypt and Syria. A legislative gap emerged in cases concerning Palestinian women, as will be shown later. In fact, the personal status law of the West Bank and Gaza was only recently unified.
The laws of their respective denominations govern Christian Palestinians. The Greek Orthodox Church, for example, applies its laws, based on Byzantine Family Law and the Patriarchate Law, to its followers. The Roman Catholic Church apples the law of the Jerusalem Latin Patriarchate to its own followers, while the Orthodox Coptic Church applies a personal status law of its own which was ratified by the General Coptic Council in 1938. All of the above laws share an element, across their differences, that endorses discrimination between the sexes.
Firstly, women are sometimes reluctant to seek from the legal system, including the overwhelmingly male dominated arena of the courtroom itself but also law enforcement since women are marginally represented among the police. Yet, secondly, there has been a resurgence in informal justice. Tribal and customary laws are often biased against women and left to the execution of meddling elders or the intervention of local notables. By custom, married men (the traditional bread-winners) are encouraged to retain property individually rather than share it with their wives, an inequality clearly reflected in statistics. Although women technically have an equal, legal right to own land only 5% of women own land and a mere 7.7% own their own home. Due mainly to the customary belief that men are in charge of financial decisions and the income and assets of their female family members, women often lack control over their income.
Shares of the inheritance are calculated according to Shari’a (traditional Islamic law) for all Muslims, and Christians as well, residing in the West Bank. Each female share, upon the death of their parents, is equal to half of each male share. Siblings of the deceased collect a share of the inheritance where there is no male child but laws discriminate positively for a wife and her children in the presence of a son. These laws also create the difference between a husband’s share of his wife’s inheritance and a wife’s share of her husband’s inheritance.
Aside from the inequities and deficiencies of the law itself, prevalent social norms prevent women from taking their legal share of the inheritance, anyway, especially in rural areas. The patriarchal and sometimes discriminatory law enforcement mechanism, compounded with the inadequate legal frameworks, create practical barriers to women’s access to justice. Women are already not recognized, at a basic level, as full persons before Shari’a courts since the witness of two women is required to balance the witness of one man in matters of marriage, divorce, and child custody. Further still, customs encourage women to forfeit their share of the inheritance to male family members, stemming largely from the absence of deterrent penal laws against such practices. Men could be deterred from submitting faulty inheritance documents if the practice were criminalized, disallowing the intentional omission of women’s (and others’) names from the documents and, thereby, systemically enforcing the rights of the women.
The personal status law must stipulate that a woman has the right to the matrimonial home when she has custody of her children and it is necessary that text be incorporated specifying the right of both spouses, in the absence of children, to divide the matrimonial properties and possessions equally. We argue the existing law blatantly discriminates against women, placing women in the position of a third class citizen whose rights are subordinate to those of men and children.
Laws/regulations amended as a result of NGOs’ efforts to entitle Palestinian women to equal inheritance and ownership rights with men.
- 1. An advocacy support campaign/action is launched by project participants/target audience on the eve of women International Day (8th of March, 2013)
- 2. At least 100 supporters sign a petition that will be submitted to decision makers to change or amend the current inheritance laws/regulations
- 3. ~17 NGOs are joining the network of NGOs, supporting the cause of women’s inheritance and their rights
- 4. 30 women who solicit the service of the legal consultations on issues related to inheritance problems
- 5. Percentage of trained women who are reporting a change in their leadership skills and better understanding of their legal and civic rights with a change to their perceived place in the community
- 6. The number of male community leaders or religious leaders who support women’s inheritance rights and educate on behalf of this right
The Islamic religious laws regarding inheritance:
“The women’s inheritance right is a God given right that each woman should take. The women have special needs as well as men, that’s why they should own cash money or have any other properties, women are just like men, they have duties and they have rights…
Each person who takes the right of others including the inheritance right is guilty and will be punished by God, also each person who knows that he has a right must be responsible to ask for and take his right” This was the opinion of Sheikh Yousef Dueis, Qadi Al Quda in Palestine.
The inheritance is a calculative science that shows the shares of the legal heirs from both the cash money and the other properties left by the deceased person. ( Do you know your inheritance right,p.3)
The Will in Islam
Islam highly recommends that each person write his own will but there are 2 conditions in force when writing a will. These conditions are;
– The will should not prevent a legal heir from obtaining his or her right.
– The will should not exceed one third of the value of the total inheritance.
The will is necessary and, furthermore, recommended when there is a son who is dead before his father and this son has children; the grandfather must write a will to protect his grandchildren’s writes.
The will is accepted either written or verbal, so that one reason underly the abuse of women’s inheritance rights is, when the males in the family says that the deceased recommended not to give any inheritance to his daughters or wife, female family members become embarrassed to ask for any inheritance, although from a religious point of view (as mentioned before) the will should not prevent a legal heir from his or her right.
When should the inheritance must be distributed??
The distribution of the inheritance occurs after the Payment of funeral expenses, payment of his/her debts, the execution his/her will, and after that the distribution of the remaining estate amongst the heirs according to Shari’a.
The Glorious Qur’an contains specific and detailed guidance regarding the division of the inherited wealth, among the rightful beneficiaries. The Qur’anic verses that contain guidance regarding inheritance are:
* Surah Baqarah, chapter 2 verse 180
* Surah Baqarah, chapter 2 verse 240
* Surah Nisa, chapter 4 verse 7-9
* Surah Nisa, chapter 4 verse 19
* Surah Nisa, chapter 4 verse 33 and
* Surah Maidah, chapter 5 verse 106-108
Female share from inheritance
Usually the women inherit half of the male share but this is not always true. In cases where the deceased has left no ascendant or descendent but has left the uterine brother and sister, each of the two inherits one sixth.
In cases where a deceased has left children and he has parents, both the parents, mother and father, get an equal share and inherit one sixth each.
Sometimes the woman can inherit a share that is double that of the male. If the deceased is a woman who has left no children, brothers or sisters, and is survived, only by her husband, mother and father, the husband inherits half the property while the mother inherits one third and the father the remaining one sixth. In this particular case, the mother inherits a share that is double that of the father.
The cases where the women inherit half of the male share
1. Daughter inherits half of what the son inherits,
2. Wife inherits 1/8th and husband 1/4th if the deceased has no children
3. Wife inherits 1/4th and husband 1/2 if the deceased has children.
4. If the deceased has no ascendant or descendent, the sister inherits a share that is half that of the brother.
Why do males inherit double than females in some cases?
The man in Islam has the duty to support the family financially. The woman has no financial obligations towards their families from a religious point of view, so before a women gets married all her financial needs are covered by her father or brother, and after marriage this duty becomes the responsibility of the husband and the sons after. So, to help the man fulfill this responsibility, the men get double the share of the inheritance.
Inheritance statistics in Palestine
To prepare the baseline survey it was difficult to find statistics about the inheritance distribution in Palestine. The Palestinian community is conservative in general. Although this community is known as religious, the truth seems to be that the cultural values play the greater role in the attitude of Palestinians and they are usually afraid to lose the family lands, money and other properties when distributing the inheritance to the females, especially those who are married in other families. Consequently, they don’t distribute the inheritance and neglect the religious values to protect the family properties.
After a referral to Dewan Qadi Al Quda in Ramallah and contacting them through a formal letter, we were referred to Bethlehem religious court and the following statistics were the only numbers that we could find:
– In the year 2010, the total number of inheritance cases referred to court was 186 and the number of Takharoj cases was only 25
– In the year 2011, the total number of inheritance cases was 216 and the number of Takharoj cases was only 9.
The Takharoj in Islam means that the legal heirs agree that one or more of them opt-out of the inheritance for a special amount of money or other property they agree upon without distribution according to the inheritance law. So some people may abuse the Takharoj by giving women less than their actual share and, because women are afraid of loosing the family support, they accept.
If there are problems in the distribution of the inheritance, people may go to the regular courts and so it is not easy to find clear statistics regarding inheritance.
Why do women in the Palestinian community don’t ask for their inheritance rights?
– The high coasts of the courts fees and the long time needed to take a decision.
– In the case of having a decision from the court, there are no executive centers in the courts. Moreover, there is no punishment for the people who do not give the women their inheritance rights.
– Fears from the familial threats like losing the family support and familial relations.
– The women poor awareness regarding their inheritance rights.
– Poor support from the women organizations.
- 1. (Report, “the Legal and Social Status of Palestinian Women”, prepared by “Women Centre for Legal Aid and Counseling, 2000”
- “Women’s Rights in the Middle East and North Africa: Progress Amid Resistance, ed. Sanja Kelly and Julia Breslin (New York, NY: Freedom House; Lanham, MD: Rowman & Littlefi Eld, 2010), online at http://www.freedomhouse.org.
- Religious court Archive, the judge of Religious Court in Bethlehem, 2012
- The holy Quran
- Do you know your Inheritance Right, YMCA, Brochure.