Beyond the rhetoric: A critical analysis of the women’s access to justice in Malawi in relation to the right to equitable distribution of matrimonial property upon the dissolution of marriage

Abstract

This dissertation, written by a judicial officer from Malawi, examines the women’s right to access justice in matters concerning distribution of matrimonial property after a judicial dissolution of a marriage. The study was provoked by many complaints and misgivings by women over decisions by courts concerning distribution of property after divorce. The study adopted women’s law approached to investigate the women’s lived realities with the legal system in accessing justice in matters of distribution of matrimonial property. The investigation was through case studies, interviews and focus group discussions which enabled the researcher to uncover legal and customary dynamics that influence court’s decisions and women’s approach to the courts. The study unearths that most women hardly know their rights to a fair share of matrimonial property upon divorce. It was discovered that women have problems to come to terms with claims of their rights in the courts. Apart from that, even where women have been awarded a share in property there were several impediments by the judicial system that hamper women’s enjoyment of the judgments by the court. The study found that problems that render women unable to access the legal remedies range from insufficient mechanisms of enforcement of the judgment, anti-women cultural perspectives and indifferences, and evasiveness of the men who might still be in the custody of the property. The study unearths observable traditional patriarchal tendencies of regarding some property as belonging to men at the expense of women’s rights and expectation. Therefore, much as the law provides for the rights of women to fair share in property and access to justice, some enforcement actualities obviously make women not to attain these rights in reality. There is a missing link in civic education thereby making Malawi failing to meet its international human rights obligations on the rights of women to access justice and equitable distribution of the property. To remedy all this, the study suggests that there is need to address the mind-set of the society by incorporating gender-friendly judicial and legal processes, including provision of legal aid to women, and invoking civic education to all on the issues of rights of women, general human rights and non-discrimination. The dissertation also suggests that there should be deliberate steps to enable women access justice without many hurdles