Widows are women whose husbands are deceased. The status of widows varies between different countries and cultures.
In many countries, a woman’s wellbeing and rights are linked with her marital status. Widows can therefore be among the most vulnerable members of society, facing discrimination, abuse, and financial hardship due to their widow status.
Specific areas in which widows may face challenges and violations of their rights include:
This section will focus thinking steps on different legal options to challenge these problems. Legal options vary in each country and legal systema and do not replace legal advice by a lawyer in your country.
If a marriage is not legally recognised, this may preclude the individuals in the marriage from benefiting from any protections that are provided for in national law – including being considered a surviving spouse and accessing all the rights that surviving spouses can get.
Having your marriage recognised or equated to a marriage can be useful for you to benefit from rights awarded to widows.
EXAMPLE: Amod (born Peer) v Multilateral Motor Vehicle (Supreme Court of Appeal of South Africa), 29 September 1999.
In this case, Hafiza Amod went to a High Court in South Africa to ask for compensation from Multilateral Motor Vehicle, after her husband’s sudden death from a car accident for which they were responsible. She had an Islamic marriage which was not registered as a civil marriage. The High Court decided that she could not seek compensation as she was not in a recognised marriage according to the provisions of the Marriage Act 25 of 1961. Hafiza Amod appealed. The Supreme Court of Appeal argued that legal definitions of marriage should adapt and, even though the marriage was not registered, in the facts it had complied with all requirements of a marriage which gave rise to “marriage like” duties, such as providing support to your wife which had to stop because of her husband´s accident. Multilateral Motor Vehicle was ordered to pay compensation to Hafiza Amod as a consequence of her husband’s sudden death.
For more information on how to have your marriage recognised or be considered and equated to a surviving spouse, see our section above on Types of marriage, celebrating a marriage and recognition.
Many countries have laws which provide inheritance rights for widows and entitle them to a fair share of the property. Even where this is the case, however, there may be several obstacles to actually enforcing those rights:
In some countries, the law does not provide for the woman to inherit her husband’s property after his death. A woman’s in-laws (her husband’s family) may therefore take control of her property and force her to leave her marital home.
Inheritance rights are often regulated differently depending on whether a person leaves a will on death, called testate succession or not, called intestate succession.
Your husband had not made a will
In this case, there are rules which decide who gets his property. Inheritance rights will often be regulated in a civil code, family code or inheritance rights law. These rules have an order of priority which states how the estate will be distributed. Surviving spouses or widows are often at the top or secondly in this order, and sometimes they are after children and parents.
EXAMPLE: The Central African Republic’s family law (Code de la Famille, 1997) states that the surviving wife or husband is third in line (after the children and parents).
To find this out, look for this order in your country’s your civil code or a special succession law or act.
Your husband had left a will
In this case, his property will be shared following what was stated in the will. He may have given you all his property, some of it to share with others or none.
In some countries, like some Latin American countries, the law protects the spouse and children for a proportion of the property of the deceased even against a will and leaves a smaller portion to be decided by a will.
To find this out, look for this order in your country’s your civil code or a special succession law or act.
In countries where there is also a regime of customary marriage, widows often do not inherit property. However, it is often the case that a will where your husband leaves you property will be applied over all other customary rules. In this case, if you have a good relationship with your husband and there is the option for him to leave you property in the will, this is a reasonable alternative.
Also, some countries require that the customary rules have to comply with certain requirements to be enforceable and some may even require it not go against the constitution.
In Nigeria, customary law must not be repugnant to natural justice, equity and good conscience as stated in the case of Agbai V. Okagbue (1991) 7 NWLR Pt 512, p. 283 CA. Customary rules also have to not go against public policy or be incompatible with the law.
This could mean that you would be able to challenge this in a civil court, or as a public law challenge, as explained in the next section. It is imperative that you seek legal advice from a lawyer in your country who is an expert in the specific customary rules that apply to you and what requirements they must comply with.
You first have to make an application often called a grant of probate (if there is a will) or grant of administration if there is no will. Most countries have a public authority that deals with these grants, such as a Probate Office or Civil Register.
The details of this will depend on each country, but common steps include completing a form and providing evidence of those that are entitled to inherit and why they are entitled. You must also have a copy of the will if there is one.
This institution has the duty to check if those making the applications are the right people and if there is anyone missing.
Some countries require you to go straight to a civil or family court to enforce your rights.
If you had property that was yours prior to the death of your husband, regularising that land is important. Ownership of property such as land or houses is transferred through a deed of transfer which is a document that certifies who is the owner. All deeds and property ownership of a country are often in a national register which is run by a Register Office or Property Register, a public institution that certifies that no one tries to alter who the owner of a property is without meeting specific requirements.
Steps to check:
What if there is a dispute around the use of customary rules or in the case that there is a dispute with other relatives over a widow’s inheritance rights or around the widow’s property rights? Civil claims.
If there is a dispute, and for example, your relatives have ignored your rights, you can oppose the grand of probate and challenge it. The process for this will be different in each country but some countries will allow you to do this directly with the institution in charge of registration. However, in most cases you would go to a Civil Court. Similarly, if they are trying to evict you or have forced you out of your land, you can challenge it.
Civil claims solve disputes between private parties, such as two individuals. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party. This can be:
Step 1: Think about why and how your rights have not been respected. Have your inheritance rights not been respected, is there lack of evidence of your marriage, was there missing or wrong evidence? Has there been a mistake? Start gathering evidence that supports that you were married, that you are a widow and that you have certain rights.
Step 2: Look at where the recognition of your rights as a surviving spouse are regulated – for example, in a civil code, or specific inheritance law or act. Example: Article 780 of the Code de la Famille confirms the right of the surviving spouse to stay in the main residence for at least two years after the demise of the deceased spouse until succession arrangements have been finalised.
Step 3: Seek legal advice on the viability of your case and to take your case to court.
Claim: civil claim in a civil court, like the High Court
By whom: the widow
Against: other relatives who may or may not have inheritance rights, or others.
Asking for: an order allowing you to benefit from certain rights. For example, to divide a property in your favour, administer an estate or decide that you are entitled to certain rights.
Proceedings will often involve:
This route is a good option for a case in which the focus is on having your inheritance rights enforced. It does not address the systemic issues in case that the law in your country is discriminatory and does not give widows fair inheritance rights.
Kenya: Gituanja vs. Gituanja, Nairobi Court of Appeal (1983). Civil Appeal No. 25 of 1982
In this case, the widow was the deceased’s second wife and was excluded of her inheritance rights as a widow by the son of the deceased who argued that he was to inherit all land. She made a claim to a civil court and asked for an order that the land be registered in the respondent’s and appellant’s names as joint owners in common in equal shares. The son argued that he was the sole proprietor and that the widow could only be the licensee to use the land but not the owner. The wife proved the marriage with witnesses’ evidence and that she therefore had inheritance rights, which the court agreed with. The son appealed claiming the judge had made an error in applying the law to this case, but it was dismissed.
For more information on civil proceedings please see our Going to Court Guide.
Some countries have special criminal sanctions for those that try to intervene with the rights of widows.
EXAMPLE: Zimbabwe. Section 10 of the Deceased Persons Family Maintenance Act protects the rights of a deceased person’s children and widow to continue occupying the land which they were occupying and using the household. Anyone who interferes with these rights would be committing a criminal offence.
This could also be an option when family members or others are using severe violence or other illegal means to force you out of your property, which may mean that they are committing other criminal offences such as theft, harassment, assault and battery.
The Police are generally the primary authority responsible for guaranteeing our security and investigating crimes. The police may be able to arrest and charge the perpetrators.
Criminal cases are investigations and prosecutions, usually undertaken by police or public prosecutors, to find out if a crime has been committed. If, after investigation, there is evidence a crime has been committed, this could lead to a criminal prosecution.
Claim: Criminal Prosecution
By whom: the widow and the state which takes over the prosecution
Against: relatives or others who committed the actions
Where: Criminal Court
Asking for: The Court to acknowledge a crime was committed and sanction those responsible with a fine or a prison sentence.
Step 1: Look at where this is regulated in our country. It will most likely be in a Penal Code or Special law.
Step 2: Think if you are within the time limit. Some countries allow you a specific time limit of 10 years, or others of less time to prosecute a crime. Other countries have no time limit.
Step 3: Think about whether you have evidence. In criminal cases, the person alleging a crime has been committed has the burden of proof. The person accused will be innocent until proven guilty.
Step 4: Seek legal advice and speak to a lawyer to see if there are good prospects for this in your country, if the police and authorities take it seriously and what are the advantages and the risks. You may also wish to get support from a Women’s Rights Organisation that can advise you on your individual circumstances and how to protect yourself.
IMPORTANT: check if your country considers it a public prosecution case. The case is usually investigated by the police, who will also gather evidence. The case brought by a representative of the State, such as a public prosecutor or state attorney. This means that if you report this to the police and their investigations result in them thinking the crime was committed, they will start criminal proceedings against those that committed the crime regardless of whether you want them to go ahead or not.
If it is a private prosecution case, you will have to take the lead and hire a lawyer to pursue the investigation. You can also drop the case if you do not want to go ahead
Think if you would like to go ahead and report the case to the police. The process varies in each country but usually involves:
This process may be long and is focused on sanctioning those that were involved in forcing you to marry. For more information about criminal proceedings, please see our Going to Court Guide.
Where:
See Public law challenges as a way to defend the rights of widows with regards to inheritance rights, evictions, traditional practices, and custody of children, below.
Some widows may face problems with relatives trying to take custody of their children after the death of their father. Such practices discriminate against women and violate international human rights law standards on child protection, which are clear that the best interests of the child should be the overriding principle guiding decisions on child custody.
Look at where custody arrangements are regulated within the family law system of your country. This will often be in a civil code, family law code or a family law or children’s act. These rules will define who will live with the children in common and have the primary duty to care for them every day.
-The default option would be that the surviving parent would have sole custody of the children. Unless there are serious reasons, this is the default option and you do not need to go to court to have a judge decide this.
-In the case that there is an issue with the parenting capacity or ability of the surviving parent, relatives can ask a court for joint custody or even for sole custody.
In this case, it is important to remember that there are several steps that relatives would have to go through before gaining custody of your children, including:
There is often a provision which requires the court to make decisions based on the best interests of the child.
IMPORTANT: BEST INTEREST OF THE CHILD
Article 3(1) of the Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
This is an important principle for courts to consider in deciding on custody arrangements and can be used by widows in keeping custody of their children.
In situations where you still have custody of the children, it may be that rather than you bringing a claim to the court it is your husband’s family who bring the claim and they have to argue and prove why they should take custody of the children. On the other hand, there may be situations where your husband’s family have already taken your children away from you – in such cases, you can make a claim before the court to ask for them to be returned to you.
Civil claims solve disputes between private parties, such as two individuals, a couple, two companies or an individual and a company. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party. In this case you would ask the judge to order that you keep custody of the child after your husband’s death.
Claim: Claim in a civil court or family court
By whom: the widow and mother of the children
Against: the husband’s family or any other individual seeking to remove custody from her following her husband’s death.
Asking for: an order that the wife keeps custody of her children and custody is not awarded to his family.
Evidence: the court may require formal evidence of your relationship with the child – for example, the child’s birth certificate and other official documents indicating your relationship. You may also have to show evidence that you have been caring for the child – this could include things such as witness statements and photos.
Stages of the custody process: proceedings will often involve:
Remedies: The judge can make an order awarding custody of the child to you, and depending on the situation may also be able to make other orders preventing relatives from attempting to take the child.
Example: Chilla v. Chilla, Civil Appeal No. 188 of 2000, High Court of Tanzania at Dar Es Salaam, Jan. 6, 2004. In this case, a claim was brought against Demetria Chilla, a widow, by Ivona Chilla, the sister of her deceased husband. The sister objected to the widow inheriting her husband’s estate, and further argued that she should have custody over the couple’s son, as his mother was a widow and would be dependent on relatives.
The court rejected the sister’s custody claim, holding that under Article 3 of the Convention of the Rights of the Child (concerning the child’s welfare), the child’s mother was the best person to have custody of the boy as she was his mother and had cared for him since his birth.
If your child is being held by relatives unlawfully, it may be possible that you or any individual or organisation that is concerned can go to a High Court in your country and ask them to check the legality of this and order immediate return of the child.
Claim: Habeas Corpus
By whom: the mother or any concerned individual or organisation in the name of the child
Against: the relatives holding the child
Where: High Court usually, but it depends on your country
Asking for: to check the legality of this and order immediate return of the child
Step 1: Look at where Habeas Corpus is regulated in your country. It is often in the Constitution.
Step 2. Think about whether the custody hearing is better to regulate the whole custody process. Habeas Corpus will help get the return of the child but will focus on regulating or reaching an agreement over custody or other family law issues. Seek legal advice from a lawyer on this.
Step 3: You will need to start thinking about gathering evidence such as proof of motherhood, identity of the child, where the child is, who is holding the child, etc.
Step 4: Although in some countries you do not need a lawyer to present an habeas corpus, seek legal advice or help from a Women’s Rights organisation to check this and the viability of your case and to take your case to court.
Step 5: Make the petition before a court. Steps vary in each country but will often involve:
This route is an option for a case in which the focus is on solving the urgent problem of getting your child back. Cost also should be reduced, although this also depends on the country. Note that Habeas Corpus will help get the return of the child but will not focus on regulating or reaching an agreement over custody or other family law issues. Think about whether the custody hearing is better to regulate the whole custody process.
Example: Subha v State, Madras High Court, India, 2015
In this case, Ms Subha was a woman who had remarried after her first husband passed away. She had a child from her first marriage, and the the child’s grandmother abducted the child, claiming that it was not appropriate for Ms Subha to retain custody of the child now that she had remarried another man. Ms Subha complained to the police, but they failed to take action to return her child to her.
Ms Subha brought a habeas corpus petition in the High Court under Article 226 of the Indian Constitution to get her child back. The Court noted that the welfare of the child was the paramount consideration and emphasised that merely marrying another person was not something that affected a woman’s right to be a suitable guardian for her child. It ordered that the child’s grandmother must return custody of the child to her mother.
It may be that the law in your country discriminates against widows by permitting a husband’s family to make a claim for custody of children. This kind of systemic issue is best addressed through a constitutional or public law challenge.
A public law challenge allows you to contest a law, policy or a decision that denies legal protections to women, on the basis that these laws, policies or acts go against your fundamental or constitutional rights.
How? The process for such a challenge varies between countries – it may be, among other things, called a “constitutional petition”, or “amparo proceedings”.
For this to work, there must be a right on your constitution or other important law which lays out your fundamental rights that protects you. Most constitutions include a general provision of equality before the law or non-discrimination. They also focus on other rights, such as right to a fair trial, equality within marriage, social and economic rights.
Chilla v. Chilla, Civil Appeal No. 188 of 2000, High Court of Tanzania at Dar Es Salaam, Jan. 6, 2004.
In this case, a claim was brought against Demetria Chilla, a widow, by the sister of her deceased husband who objected to the widow inheriting her husband’s estate because she was not chosen to do so by her husband’s clan. The court decided that this was contrary to the equality provisions of Articles 13, 19, and 26 of the Tanzanian Constitution and Articles 2 and 16 of CEDAW. In addition, the Judge noted that the trial magistrate’s gratuitous finding that only male children can inherit was both irrelevant and contrary to the Tanzanian Constitution, which bars gender discrimination in all aspects.
For more information see Public law challenges as a way to defend the rights of widows with regards to inheritance rights, evictions, traditional practices and custody of children.
Some traditional customs that widows are required to comply with after the death of their husbands can be discriminatory and violate widow’s human rights.
Definition: Levirate marriage is “the forced marriage of a widow to the brother of her deceased husband; sororate marriage is the forced marriage of the sister of a deceased or infertile wife to marry or have sex with her brother-in-law, the widower/husband.
In some countries, Levirate marriage is criminalised by law. There may be provisions in the Criminal or Penal Code.
Examples of criminal liability for Levirate marriage: In NIGERIA the Enugu State enacted The Prohibition of Infringement of a Widow’s and Widower’s Fundamental Rights Law, 2001 protects the rights of widows and widowers, including the right to not participate in a levirate marriage. It states that “[n]o person for whatever purpose or reason shall compel a widow/widower … to be re-married by a relative of the late husband/wife”. Violation of this law could result in a fine, a two-year jail term, or both.
The Police are generally the primary authority responsible for guaranteeing our security and investigating crimes. The police may be able to arrest and charge the perpetrators.
Criminal cases are investigations and prosecutions, usually undertaken by police or public prosecutors, to find out if a crime has been committed. If, after investigation, there is evidence a crime has been committed, this could lead to a criminal prosecution.
Claim: Criminal Prosecution
By whom: the widow and the estate which takes over the prosecution
Against: the brother in law, relatives or others who committed the actions
Where: Criminal Court
Asking for: The Court to acknowledge a crime was committed and sanction those responsible with a fine or a prison sentence.
Step 1: Look at where this is regulated in our country. It will most likely be in a Penal Code or Special law.
Step 2: Think if you are within the time limit. Some countries allow you a specific time limit of 10 years, or others of less time to prosecute a crime. Other countries have no time limit.
Step 3: Think about whether you have evidence. In criminal cases, the person alleging a crime has been committed has the burden of proof. The person accused will be innocent until proven guilty.
Step 4: Seek legal advice and speak to a lawyer to see if there are good prospects for this in your country, if the police and authorities take it seriously and what are the advantages and the risks. You may also wish to get support from a Women’s Rights Organisation that can advise you on your individual circumstances and how to protect yourself.
IMPORTANT: check if your country considers it a public prosecution case. The case is usually investigated by the police, who will also gather evidence. The case brought by a representative of the State, such as a public prosecutor or state attorney. This means that if you report this to the police and their investigations result in them thinking the crime was committed, they will start criminal proceedings against those that committed the crime regardless of whether you want them to go ahead or not.
If it is a private prosecution case, you will have to take the lead and hire a lawyer to pursue the investigation. You can also drop the case if you do not want to go ahead
Think if you would like to go ahead and report the case to the police. The process varies in each country but usually involves:
This process may be long and is focused on sanctioning those that were involved in the “widow inheritance”. For more information about criminal proceedings, please see our Going to Court Guide.
Levirate marriage is a custom by which a male family member inherits a widow, this is primarily the brother of the deceased. Where there is no consent from the widow, this constitutes an example of a forced marriage. The criminal and civil remedies discussed in our forced marriage section are relevant. For more information, please see the Forced Marriage section.
There are other criminal offences committed whilst in the process of forcing a widow into levirate marriage which constitute acts of violence against women. These may include assault, kidnap, abduction, harassment, false imprisonment, domestic violence, and any relevant sexual offences.
For more information on these offences, please see our Violence Against Women section.
It may be that widows are not awarded any protection at all in your country, or that there is legislation or policy which affects the rights of widows, either in terms of their inheritance rights, rights against eviction or inhuman and degrading treatment of widows. This kind of systemic issue that is best addressed through a constitutional or public law challenge.
A public law challenge allows you to contest a law, policy or a decision that denies legal protections to women, on the basis that these laws, policies or acts go against your fundamental or constitutional rights.
How? The process for such a challenge varies between countries – it may be, among other things, called a “constitutional petition”, or “amparo proceedings”.
For this to work, there must be a right on your constitution or other important law which lays out your fundamental rights that protects you. Most constitutions include a general provision of equality before the law or non-discrimination. They also focus on other rights, such as right to dignity, right to a fair trial, social and economic rights.
Claim: Constitutional claim in a constitutional court. Some countries allow you to go to a civil court.
By whom: the widow (can be supported by civil society organisations) and some countries allow civil societies to represent the public interest and take a case alone.
Against: an act by a public authority or in some countries a private institution too, that gives the wife less rights than the husband. In some countries like in Peru (article 200 of the Constitution, laws are challenged through “unconstitutionality actions”.
Asking for: declare the act or law unconstitutional and have it not applied in your case and in some cases it would not apply to all similar cases.
They will require:
If successful, the constitutional courts may provide for an act, law, or policy to be declared unconstitutional. This often means that the act, law, policy cannot be implemented in an individual case (concrete application), but it may in some countries also have the benefit of not being applicable in ANY case (general application).
A constitutional challenge is often a good route to challenge a law or policy which itself affects more than one individual, as it can be replicated by others or may change a law and policy for everyone.
Ephraim v Pastory (2001) AHRLR 236 (TzHC 1990)
Ms Pastory, a woman from the Haya ethnic group in Tanzania, inherited clan land from her father via a valid will, and sold it outside her clan – her nephew filed a claim against her in the Primary Court on the basis that such a sale was not permitted under Haya customary inheritance laws. The Primary Court held that the sale was void and ordered Ms Pastory to refund the sale money to the purchaser. The District Court overturned this on appeal, holding that the Bill of Rights 1987 prohibited discrimination on grounds of sex and granted equal rights to female and male clan members. Her nephew appealed to the High Court.
The High Court dismissed his appeal – it held that this custom was discriminatory and violated article 13(4) of the Bill of Rights of the Tanzanian Constitution and international human rights standards in the ICCPR, CEDAW and ACHPR. It therefore held that the sale was valid.
Most protection for widows in international law is derived from protections for women and women in marriage more generally.
International Legal Protection for widows
Article 5 of CEDAW provides that states must take all appropriate measures to change social and cultural patterns which reproduce the inferiority of women. Article 16 (h) of CEDAW emphasises that states must take all appropriate measures ensure the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property. As noted above, many laws and practices discriminate against widows in the sphere of their property rights.
The CEDAW Committee in its General Recommendation No. 21 on ‘Equality in marriage and family relations’ explains that “there are many countries where the law and practice concerning inheritance and property result in serious discrimination against women”, and that “Such provisions contravene the Convention [CEDAW] and should be abolished.”
There are also several regional treaties and agreements which contain relevant protections, including:
Africa:
Article 2(2) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) provides that States commit themselves to modify social and cultural patterns through public education, information, education and communication strategies, “with a view to the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for men and women”.
Americas:
Article 17(4) of the American Convention on Human Rights affirms that States shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests.
Asia:
Article 19 of the ASEAN Declaration provides that the family as the natural and fundamental unit of society is entitled to protection by society and each ASEAN Member State. Men and women of full age have the right to marry on the basis of their free and full consent, to find a family and to dissolve a marriage, as prescribed by law.
TIP 1: You can find a detailed table of international law on marriage here.
TIP 2: You can click on this link and look for your country on the list. If your country is party to a treaty it must comply with the rights and obligations included in them. Your country may have applied reservations (limitations to the application of the treaty) when they became party to a treaty which you can also read.
TIP 3: You can search for cases in your country or in your regional system and see which rights have been most effective to uphold widows’ rights in the past.
If your claims and challenges in your national courts are rejected by the highest court, or are not taken seriously, you may be able to take your case to a regional or international body.
These provisions are especially useful for organisations and the community to hold their governments progressively to account particularly towards systemic change.
For more information on how to take your case to an international or regional body, please see the section on this guide “International Mechanisms to protect your rights”.