Invisible And Excluded: Risks To Informal Wives And Partners From Land Tenure Formalization And Titling Campaigns In Latin America
By: Jen Duncan, Laura Bermudez, Kevin Barthel
Photo credit: Andrea Teran, Ecuador
Below is an excerpt from a paper entitled “Invisible And Excluded: Risks To Informal Wives And Partners From Land Tenure Formalization And Titling Campaigns In Latin America”. This study is a product of the Global Land Alliance’s Communications, Education and Learning initiative in support of our mission to advance the learning and practice of land governance and led by GLA’s Gender and Social Inclusion Team. Read and download the paper in its entirety by clicking on the link below:
Executive Summary
Latin American countries have pursued rural land titling and registration campaigns over the past several decades with a broad range of social and economic goals. These efforts represent a permanent or long-term legal recognition of rights to land as a primary economic asset for agricultural communities and a source of family subsistence, security, and social and cultural wellbeing. Land rights can provide multi-generational benefits to recipients.
Photo Credit: Andrea Teran, Ecuador
An increasing body of evidence demonstrates gender bias in land rights formalization campaigns, and gender disparity in landholding in Latin America remains acute despite decades of policies, laws, and regulations supporting gender equality. One reason for this disparity appears to be the high prevalence of marriage informality in areas of land rights formalization. Even where laws provide equal land rights to informal spouses, claiming these rights is far from easy in the context of a land rights formalization campaign, where implementers may never even know that an informal spouse exists or has a co-ownership claim to a particular parcel of land. Women themselves often do not know they have rights as informal spouses, and in many cases do not view themselves as “informal spouses” at all, but rather as partners who may not have any spouse-like rights. Women often lack access to justice to make a timely claim if their rights have not been recognized, social norms may discourage informal spouses from making a claim, and data metrics and feedback loops are inadequate to catch problems as they arise during implementation.
This paper is a response to the urgent need project implementers have highlighted in several Latin American countries for further attention to the challenges of marriage informality that results in the exclusion of rural women in land tenure formalization campaigns. Authors present recent evidence from the Dominican Republic and Colombia against a backdrop of regional and global trends, discuss policy implications, and explore practical ideas for mitigating risks to informal wives in land rights formalization campaigns.
Recommendations provided at the end of the paper fall into seven categories:
Improve legal and regulatory frameworks.
Strengthen capacity development in implementing institutions and provide support through project design.
Improve awareness of women’s land rights, with a focus on rights of informal wives.
Enhance women’s access to justice at the community level.
Foster changes in gender norms at the community level.[1]
Generate better data and the ability to coordinate data between agencies to locate informal spouses.
Pursue research to better understand the issue of gender-based exclusion from land rights formalization campaigns because of marriage informality.
The Risks to Informal Spouses
“El riesgo para los cónyuges informales como resultado de los procesos de formalización de los derechos de tierra es grave y es compartido en muchos países y contextos culturales de todo el mundo. Esta es una situación bastante común en que el sector de la tenencia de la tierra no ha prestado suficiente atención como comunidad global. Si bien se ha identificado generalmente como un riesgo, la falta de política y mecanismos salvaguardias operativas incluidas en los proyectos de formalización y titulación de tierras proporciona la consecuencia involuntaria de que un cónyuge informal podría estar en una situación de menor seguridad de tenencia como resultado de un proceso sistemático de de titulación de tierras.” *
-Excerpt from study on risk of impoverishment and displacement from land titling efforts in Hondo Valle, Dominican Republic, 2019 (UTEPDA and IDB)
*[The risk to informal spouses as a result of land rights formalization processes is grave and it is shared in many countries and cultures worldwide. The global community has not given this common situation in land tenure sufficient attention. Even if the risks are raised, the lack of policy and operational safeguards included in formalization and titling projects may still unintentionally leave informal spouses with less tenure security than they had before.]
Introduction
Land rights formalization and titling campaigns in Latin America have improved land tenure security for many rural people over the past decades.[2] These efforts represent a historic transition of land-based wealth, likely to benefit recipients of registered rights for generations to come.
While many have gained, however, others have been left out, and risks are often highest for women. With growing global recognition of women’s land rights as a central factor in achieving social development goals, many countries have adopted gender equitable policies in land rights formalization, requiring, for example, joint spousal registration for land held by married couples or for any couple living in a long-term “marriage-like” relationship. However, the Latin American region has one of the highest rates of marriage informality[3] in the world, and emerging evidence points to the risk that land rights formalization efforts may exclude rural women who live with partners in informal marriages, despite legal safeguards. Formalization programs that fail to recognize and include these “invisible” wives risk leaving them worse off than they were before, in some cases permanently transferring rights to the land on which they live and work to male partners.
Photo Credit: Andrea Teran, Ecuador
The purpose of this paper is to raise awareness among national governments, multilateral and bilateral development agencies, civil society, and researchers about the risks to rural women’s land rights related to marriage informality in the context of land tenure formalization campaigns in Latin America. The paper draws on the experience of Global Land Alliance (GLA), along with its national and international partners, in ongoing tenure formalization efforts in Colombia and the Dominican Republic. The paper is not based on quantitative data collection, as data on marriage formality and many gender-based aspects of land tenure regularization programs does not yet exist or is incomplete in most cases. It is rather based on implementers’ observations and qualitative data gathered in the course of project implementation, through one-on-one conversations and focus group discussions.
The paper is organized into the following parts:
Summary of facts, trends, and why this issue matters;
Causes of exclusion based on marriage informality;
Country-based variations and issues; and
Conclusions and recommendations.
PART 1: Summary of Facts, Trends, and Why this Issue Matters
First—Securing Women’s Land Rights is Critical to Achieving Development Goals
In the past decade, a clear international consensus has emerged that women’s land rights are a critical aspect of equitable rural development and poverty alleviation, and are linked closely to social and economic objectives, including women’s equal decision-making authority within the household; women’s economic, social, and political empowerment at the community level; household income and food security; women’s and children’s health and educational needs; women’s economic resilience; environmental and climate change sustainability; and reductions in gender-based violence (Salcedo-La Viña, 2020; UN Women, 2020; Landesa, 2016; Landesa, 2019). The UN Sustainable Development Goals feature women’s land rights indicators for Goal 1 (poverty eradication), Goal 2 (ending hunger), and Goal 5 (gender equality).
Photo Credit: Kevin Barthel, Bolivia
Women’s land rights are important both within a marriage or marriage-like union, and during key life changes. Within a marriage or union with a partner, women who have secure land rights often have a greater role in decision making about land and the income derived from it, which in turn fosters higher levels of wellbeing for the household, and progress toward development goals at multiple levels (UN Women, 2020; Landesa, 2016).[4] Women with secure land rights are also more likely to participate fully in decisions about land transactions. During family transitions, such as separation, divorce, or death of a husband/partner, a woman’s secure rights to land can serve as a life raft, providing her and her children with a place to live and a productive economic asset to use, sell, mortgage, or lease (Salcedo-La Viña, 2020; Landesa, 2016; UN Women, 2020). This is of high relevance and concern in Latin America, where divorce and separation rates continue to rise (UN Women, 2020) and male-dominated inheritance patterns for land constrain women’s choices upon divorce (see Guereña, 2016, p. 17).
Box 1. When women have greater control over economic resources within the household, they…
Have a more equal status vis-à-vis men within their intimate relationships;
Have greater negotiating power in the family;
Are more able to leave an unsatisfactory or violent relationship; and
Have greater control over their own income and an adequate level of wellbeing
United Nations Entity for Gender Equity and the Empowerment of Women (UN Women) 2020, p. 3
Secure land rights are often a threshold condition for women farmers and other rural residents to live, work, and participate in their households and communities on a par with men. For women’s land rights to be secure and equal to those of men, they must not just be legally prescribed, but also socially legitimate, durable, and enforceable (Hannay & Scalise, 2014).
For rural women, land is life; [land rights are] vital for the family’s land ownership, and inputs to make it productive are closely linked to women’s economic empowerment, to decision-making about food production, to the preservation of our environment and to ensuring food security and protecting our native seeds...
-Matilde Rocha, Vice-President Federación Agropecuaria de Cooperativas de Mujeres Productoras del Campo de Nicaragua (FEMUPROCAN), Nicaragua, as quoted in Da Silva (FAO,2016)
Photo Credit: Andrea Teran, Ecuador
Although women without secure land rights have little chance of fair return from land-based activities, secure land rights may not in themselves be enough. Evidence shows that other complementary goods and services are often necessary for women to benefit equally from their investments of labor and resources in the land. Women may also need access to credit, agricultural extension and training in small business management and climate-resilient practices, along with development of local market infrastructure and greater opportunity to participate in agricultural supply chains. When women in Latin America do not hold secure land rights, however, they are less able to access inputs like credit and technical assistance (Guereña 2016, p.27).
Finally, although this paper focuses on the urgent need to include informal spouses as joint landholders in land rights formalization campaigns, evidence demonstrating gains to women through joint titling or certification is less well-established than it is for women having individual titles or certificates to the land. This is likely related to negative beliefs and norms about women’s co-ownership of land, and in some cases lack of awareness by both women and men, as well as local officials, about co-ownership rights, as further discussed below. Guereña (2016, p. 27) makes the point that joint titling is not in itself enough to guarantee women equal rights to land in Latin America, without specifically targeted gender polices that support the recognition of women’s role in agri-food production both at household and community levels. While evidence on benefits to women from joint titling is nuanced and still emerging, most would agree that the alternative to including women’s names on titles or certificates in the process of systematic land rights formalization—that is, the permanent or long-term exclusion of women from recognized rights to the land on which they live, work, and depend—is not acceptable.
Photo Credit: REDDOM, Dominican Republic, 2019
The challenges that some women face in obtaining joint title to their land rights also point to another question that is fundamental to this paper: would it be possible for more rural women to claim land in their own names, independently of their husbands or male partners, in the context of land rights formalization campaigns? As discussed below, in many cases women in current or past unions with men meet the qualification requirements for land rights allocation/formalization in their own right, based on their occupation and contribution to productive use of the land over some period of years. Our inquiry into the effect of marriage informality on ensuring rural women benefit equally from land rights formalization campaigns should not be limited to informal spouses’ rights through their male partners’ claims but rather include all of the ways that rural women should be able to claim their rights, regardless of civil status (GLA, 2016).
Second—ensuring women’s equal opportunity to benefit from land rights formalization campaigns requires the identification and inclusion of informal wives
Given the prevalence of spousal informality in Latin America, including informal wives in land rights formalization campaigns is essential to ensuring that women have equal opportunity to men to benefit from these campaigns. Marriage informality is a widespread phenomenon with deep roots in Latin America, including in areas of prominent land rights formalization campaigns, and rates in most countries continue to either hold steady at high levels or increase (Deere & León, 2021; UN Women, 2020; Esteve et al., 2016). According to the authors of a 2016 study examining the historic causes and trends of consensual (informal) unions in Latin America, the rise began in the 1960s (Esteve et al., 2016). Prior to that time, some countries already had high levels, as formally recognized marriage was viewed mostly as an institution of white Europeans and the elite classes and was not prevalent among Indigenous Peoples.
According to the most recent data (in most cases, the 2010 censuses), the following percentages of 30-34-year-old women in unions with men (marriage and cohabitation) were cohabitating:
Marriage informality in Latin America is linked with increased vulnerability and marginalization for women and girls. While informal unions are the norm in many areas for women and men of all ages, child and early marriages are more frequently informal than formal, and women and girls in child and early marriages are most often Indigenous, do not speak Spanish, and live in rural areas (UNICEF, 2019, p. 4). According to a 2019 report from the United Nations Children’s Fund (UNICEF), one-quarter of young women in Latin America and the Caribbean are married—formally or informally—before they are 18, a ratio that has stayed the same for 25 years (UNICEF, 2019; see also Taylor et al., 2019; Taylor et al., 2015). Women who entered informal unions when they were children or very young, or who are still children when land formalization occurs, are likely to be less empowered within the household. They are less likely to have completed their education, less likely to know their rights, less likely to have strong support networks, and less likely to be confident and vocal with their partners.
In some cases, high rates of informal marriage also correspond with areas of conflict or post-conflict. In Colombia, for example, decades of armed conflict caused long-term disruption and change to the social fabric that supported marriage formality (see Deere & León, 2021). By 2010, the rate of women aged 25-29 in consensual unions, among all women of the same age group in unions with men, was 76.8 percent (Deere & León, 2021). Informal marriages were prevalent in Nicaragua, Peru (nearly 70 percent by 2010), and in other countries that have embarked on large-scale land rights formalization campaigns as a step toward reestablishing socio-economic stability. In these areas, risks are particularly high of gender exclusion from land rights recognition based on spousal informality at the outset.
Third—project-based evidence from several Latin American countries indicates a very high risk that informal wives have been and continue to be excluded in land rights formalization
Given how important women’s land rights are to an array of critical development goals, ensuring that women benefit equally from land rights allocation and formalization programs is not only a desirable goal (or box to check), but must be considered an absolute threshold issue for the success of the program. This is both because of the “good things” that can ensue when women have secure rights to land, and because not including women risks increasing entrenched bias and marginalization of rural women and children from economic opportunity for generations to come. Land rights formalization programs that do not fully incorporate the rights of both formal and informal spouses risk leaving a legacy of socio-economic disempowerment for women within their households, communities, and countries, characterized by:
Decreased ability to pursue economically independent livelihoods, increasing vulnerability to exploitation;
Exclusion from decisions about the sale, lease, and use of land and property;
Greater vulnerability to dispossession, land grabbing, and displacement;
Denial of inheritance rights in case of divorce or spouse death;
Higher levels of poverty and lower socio-economic status;
Lack of a safety net in times of financial crises and life changing events; and
Greater vulnerability to enter and remain in abusive relationships and experience gender-based violence.[5]
Despite the urgent need to prioritize gender inclusion, the global land rights sector has also learned over the past decade that full and equitable inclusion of women in land rights formalization programs is far from easy, even when legal rights are in place and there is political will at the national level. In fact, land formalization programs in Latin America have a mixed history of gender inclusion (Fuentes & Wiig, 2009; Broegaard, 2013; Guereña, 2016; UN Women et al., 2018). Despite some of the strongest legal protections for women in the world, such as laws that mandate joint titling of land for couples in both formal and informal marriages, implementation challenges persist, resulting in gender-biased results. “Without exception” women still have fewer landholdings than men in Latin America, ranging from 8% of total landholdings in Guatemala to 30% in Peru” (Guereña, 2016). Women who do hold land have on average smaller, less secure and worse quality plots than men (Guereña, 2016).
The current status of land rights in most Latin American countries reflects a deep bias toward males in inheritance, in marriage, in land distribution programs by both community and state programs, and in land markets (Deere & Magdalena, 2003). Land rights formalization campaigns that merely recognize this status quo risk exclusion of large numbers of women, especially those within marriages and unions with men.
Women who are in informal marriages or partnerships with men are often most at risk of exclusion in land formalization campaigns. Much importance has been placed on gross percentages of women’s names on registration documents in large-scale, donor-supported formalization campaigns. But even when these numbers are considered to be “good,” they often reflect provision of land rights to high numbers of single women heads of households often widows), while masking much lower numbers for jointly titled land between spouses in formal/informal marriages.
Women in informal or common law unions or polygamous marriages, particularly when these are not legally recognized, also face significant disadvantages. These women are more likely to be left out of titling or certification processes. Although many countries now legally recognize consensual unions, the process of recognition can be so costly and cumbersome that poor, rural couples do not go through with it.
Photo Credit: Kevin Barthel, Bolivia
Risks appear to be highest for women within informal marriages—the invisible spouses. These women may not only emerge from land rights formalization campaigns without their own name on a title, certificate, or registry, but in a worse place than they were before, as the rights to land they have lived on, contributed to, and farmed for family food needs or income now shift legally to somebody else. Even when laws protect the rights of informal spouses to community property in their “marital” union, the reality is that an informal spouse will almost never be able to claim her rights if her name is not on the registration document.
Among informal wives, one subset appears to be at an even higher risk: women who are “second” (or can include third or fourth) wives or partners, forming part of a man’s second family, who may have worked and lived on land that will now be formally transferred to either the man alone, or to the man and his first, socially and/or legally recognized wife. In some countries and regions in Latin America, social norms permit parallel families, wherein one man maintains multiple informal wives and families, each living on a separate, distinctive parcel of land.[6] Land formalization programs risk missing these “second” wives, and may jeopardize traditional social norms that have provided some level of protection to these wives, such as the right to remain on the land and in the house if the informal husband/partner dies. This may also deprive the children of the second wives from inheriting the land, depending on applicable laws of succession.
Another risk among informal spouses arises in the case of subsequent partners: an initial partner who may have worked on and occupied land for many years with a male partner may be passed over completely in a land rights formalization campaign if they have since been divorced or separated and she no longer lives on the land.
Diagram 2: Concentric circles of risk for women in land rights formalization programs
Risks are especially high for informal wives and partners where title conveys a right to transact land, and in areas with established land markets—in these cases, men who are solely named in registries and on titles or certificates can unilaterally sell, mortgage, or lease out the land without any approval from their spouse. Even if legal protections exist for spouses in this situation (e.g., laws establishing community of property for consensual unions or de facto marriages (uniones maritales de hecho in Colombia, or laws requiring spousal approval for transactions of family land), it is very difficult for registration officials and/or prospective buyers or mortgagors to find an unnamed informal wife if her name is not on the registration document. She is often, indeed, invisible. Similar risks would apply in the case of compulsory acquisition, whereby the government takes private land for public good, paying fair compensation to the (named) owner.
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[1] For more information on social and gender norms related to land rights, see USAID, 2021.’
[2] Land rights formalization campaigns have taken place in many Latin American countries over the past 30 years, including Brazil, Bolivia, Colombia, the Dominican Republic, Guatemala, El Salvador, Honduras, Nicaragua, and Peru. This paper does not address important questions about overall fairness or outcomes of formalization efforts outside of the particular issues related to informal spouses. See Guereña 2016 for a broader discussion.
[3] “Informal, de facto or common law unions refer to arrangements in which the parties involved cohabit over a period of time without formalizing their relationship…” UN Women et al., 2018,p. 9.
[4] Authors of a 2019 Center for International Forestry Research (CIFOR) report summarize why it is critical in the land rights sector to distinguish gender interests within the household. “Gender differences are sometimes ignored, or it is assumed that a household head can and will speak for the interests of all. History suggests this is not always the case and raises red flags for anyone working on land and resource tenure rights, including land demarcation, and rule setting and enforcement. Failing to clearly understand these differences can lead to loss of rights for women, and potentially other vulnerable groups, and to food insecurity for their families.” Larson et al., 2019, p. 7.
[5] USAID, 2022. Systematic denial of land right amounts to a form of economic gender-based violence against women. This kind of violence puts women at risk of other kinds of violence such as sexual or physical violence, because they lack the economic power to escape from their violent partners/sons/family members. See Bessa & Malasha, 2020, for further discussion on the multiple aspects of gender-based violence to consider in the context of women’s land rights.
[6] Parallel family arrangements in Latin America are not recognized by law, or formally recognized in most social and cultural settings, and in this way differ from open polygamous marriage practices and norms in many parts of the world. None-the-less, these parallel families exist in many Latin American countries, and many communities show some level of acceptance/tolerance for a man having extra-marital relationships and forming a second or third family separate (and often hidden) from his first.