Maintenance and inheritance: a conflict between rights and needs?

A 1994 conference sponsored by the human rights organization Al-Haq, entitled ‘Women, Justice and the Law’, at the very beginning of the interim period, was the first initiative to review existing legislation from a gender-aware perspective.

In the 1998 model parliament, formulas for joint maintenance and respon­sibility for the family between husband and wife were considered. In her book that served as the sourcebook for the parliament, attorney Asma Khader (1998: 143) provided a somewhat complicated formulation: ‘Maintenance of each human being is his or her responsibility, and the maintenance of the wife or husband who is not working is the responsibility of the other. The maintenance of the children is a joint responsibility between the partners according to their financial ability, during the marriage and after it is ended.’

In model parliament discussions, participants basically accepted this formula, but emphasized ‘whenever possible’. This clause suggests a conflict between a strong impulse towards equality and equal citizenship in this critical period of state-building and awareness of the diverse social and economic circumstances of Palestinian women and the special conditions of Palestinian society faced with instability and serial crisis.

Indeed, analysts of shari'a court records note that maintenance claims ‘appear to constitute over half the caseload of the shari’a courts in both the West Bank and Gaza Strip’ with one study for the years 1992-94 finding such claims⁴⁵ at 68 per cent of all cases (Welchman 1999: 105), a majority for the wife’s own person. This high proportion suggests that the right to maintenance remains a real issue for women, even given the small amounts allotted, underlining women’s lack of access to other economic resources under the prevailing conditions in Palestine. Indeed, recent research by the Institute of Women’s Studies has shown that half of all households receiving formal social welfare are de facto female-headed households, with widows and divorcees the overwhelming majority of these (National Gommission for Poverty Eradication 1998).

The issue of maintenance illustrates the conflict between the equality of citizens and the different status of men and women in the system of family law, reflecting the contradiction between rights in civil/constitutional law (public rights) and rights in personal status law. But it also indicates some of the material and social reasons that make this conflict difficult to resolve solely by legal reform, without addressing the wider context and how women and men in various settings perceive and act on their interests and needs. In particular, women without access to the labour market or without adequate skills or education may have a different set of interests from working or professional women, whose voices were pre­dominant in the model parliament. Diversity and difference among women’s interests and needs is thus another challenge to the equality argument and its application in family law. In the aftermath of the parliament, the attention given by women activists to working with the religious establishment to establish a maintenance fund (sanduq nafaqd), at the same time as working separately to draft a family law, attests to a willingness to address this duality:

A more discussed and contested issue in the parliament and its aftermath is the issue of inheritance, in which women activists face both legal and societal hurdles. On the latter, a number of analysts of Palestinian society have noted the widespread phenomenon of women renouncing their share of inheritance in order to gain their brothers’, sons’ or other male relatives’ putative social support and protection. These observations are confirmed by a recent survey by the Gender L nit of the Palestinian Central Bureau of Statistics which showed that only a quarter of Palestinian women report a right to any inheritance and of those a majority had not received their full share as defined by prevailing law. Statistics are not given for male entitlement so the low percentage of women reporting a ‘right to inheritance or a portion of inheritance from the family or the husband’ cannot be compared. However, the lower proportion of Gazan women reporting a right to inheritance (at only 16 per cent compared to 30 per cent of West Bank women) suggests that the absence of land among the largely refugee population of Gaza may mean that male entitlements are also low. Of those reporting a right to inheritance, 67 per cent of West Bankers and 48 per cent of Gazans did not actually obtain their share of inheritance (PCBS 1999a). Here once again, the absence of a state and public social provisions has probably prolonged and compounded a social practice that disallows women inheritance rights, however unequal, under prevailing Islamic inheritance principles. In the aftermath of the model parliament, approaches to inheritance became one of the sticking points within the women’s movement itself.