Annex I - Case studies on Colombia, Cuba, El Salvador, Mexico and Venezuela: an overview
I. RURAL WOMEN AND LEGISLATION IN COLOMBIA51
(51 Based on the study by ALVEAR VALENZUELA, S. 1990. La Mujer Rural y la legislación en Colombia. Santiago de Chile, FAO. 189 p. Summaries on Chile, Guatemala, Peru and the Dominican Republic, similar to those presented here, appear in FAO, 1987, Mujeres campesinas en America Latina. Desarrollo rural, acceso a la tierra, migraciones, legislación. Santiago de Chile, FAO/RLAC. 266 p.)
The legal situation of the rural woman in this country has improved considerably in recent years. After Cuba and Nicaragua, Colombia is the country with the most legislation on the rural woman and with strategies for incorporating her into development.
However, perhaps because of the lack of a reference framework covering the entire range of problems affecting rural woman, progress has not been equal in all legislative fields. Inconsistencies and gaps in the legislation place women in general, and rural women in particular, in a subordinate position. Also, many laws lack enforcement regulations: by themselves they are a dead letter. Here, as in all the countries of the region, custom is the greatest obstacle to the law having its desired effect.
1. Constitutional Law
No distinction on the grounds of sex is made in any of the provisions of the Constitution.
Citizenship was conferred on women in 1945, but not before 1957, following electoral reform, did they obtain the right to vote and be voted for. Since then, men and women have equal opportunities to exercise three major rights: to vote, to be elected and to assume public office and functions. Article 43 of the revised Political Constitution, approved in July 1991, establishes equal rights and opportunities for men and women and prohibits discrimination against women.
2. Civil Law
None of the rules of the Colombian Civil Code discriminate on the basis of sex, but discrimination most frequently operates because the law is not put into effect. This is often due to people's ignorance of, or failure to exercise, their rights, but sometimes, to the wrongful application of the laws by the authorities, or simply from prejudice, based on customs which impede their implementation.
Marriages may be civil or religious, and both produce civil effects. Act 20 of 1974 approved the reform of the Concordat then in force, replacing Catholic marriage, until then the sole option available, by a choice of religious or civil marriage.52
(52 Chapter 2 of the new Constitution (Socio-economic and cultural rights) provides that marriage and all its consequences (age, capacity, responsibilities, rights, separation, dissolution) would henceforth be governed by civil law alone.)
The annulment or dissolution of Catholic marriages falls under the jurisdiction of the ecclesiastical courts and their rulings have civil effects. Civil marriage before a judge is reserved for those who do not wish to enter into a Catholic marriage.53.
(53 Under the new Constitution, the civil marriage is in any case compulsory.)
The spouses' property within the marriage is regulated in two ways: one, through the property of conjugal partnership (the most common); and two, through articles of marriage (capitulaciones matrimoniales), which are agreed upon before or after the marriage if the spouses decide to keep their property separate.
Under the property of conjugal partnership regime each spouse is free to administer and dispose of the assets held before and acquired after the marriage. In the event of dissolution of the marriage, a community of jointly held estate is formed for the purpose of liquidation.
The separate property regime also exists. For this to be legally valid, the spouses must enter into the marriage settlements - capitulaciones - mentioned here.
Divorce is possible only for civil marriages, but a civil court judge may grant a legal separation in cases where spouses have been separated for more than two years.54
(54 Colombia's revised Constitution provides that the civil effects of all forms of marriage cease with divorce. v future of the children and to administer any property they may have.)
There is no express legislation covering the woman's person or property. Nevertheless, it is common practice in the countryside for the husband to be the head of the household, and he will administer his wife's assets and have authority over her person.
According to the law, this is held by both parents, but it is common in the rural areas for the father to decide on the-future of children and to administer any property they may have.
The law of succession provides for both testamentary (by virtue of will) and intestate (where there is no will) succession. It is worth noting that intestate succession is not conditioned by sex or primogeniture. However, the institution of the "spouse's portion" obtains in Colombia for spouses who have drawn up marriage settlements. This share corresponds to one quarter of the decedent's assets if there are no legitimate descendants; if there are the widow, or widower will be treated in the same way as the children and receive the same share as one of them.
Under Colombia's Political Constitution the family estate may not be alienated or seized. The relevant enforcement regulations are provided by secondary legislation (Art.50).
Act No. 70 of 1931 authorizes the holding of assets under a family estate for the benefit of minor children; the estate may not be seized, and it may be formed only if there is a clear title to the property. Unfortunately, data on how this legal institution is implemented in the rural sector were unavailable.
De Facto Unions
The courts have had to rule on these situations because of the lack of express regulations on the subject and the large number of couples involved and, further, because a de facto property regime or a kind of work contract could stem from them. 55
(55 Act No. 54 of 1990 legalized the de facto union and its property regime. The new Constitution also legalizes such unions.)
As a de facto union is a kind of joint property partnership, the property is liquidated in the event of the death or at the request of either partner: property purchased during the union is divided equally. Should liquidation not be feasible, action may be brought for compensation for all the improvements made to the former companion's dwelling or commercial premises.
Agrarian law definitely recognizes consensual unions, and provides for the allocation of land to the couple, who have the option of managing it jointly or individually. Consensual unions are also recognized for succession purposes. Should one of the allottees die before paying the full purchase price or within the first fifteen years of the allocation, the judge is required to grant joint control of the land to the heirs, including the companion (Agrarian Reform Act). Under labour law, again, the female companion is entitled to receive a pension and a family allowance.
With respect to cooperative legislation, Decree No. 1481 of 1919 stipulates that social insurance, solidarity and welfare services may be extended to parents, spouses, regular companions, children and other relatives as provided for in the cooperative statutes.
3. Labour Law
Generally speaking, labour legislation does not discriminate against women in the matter of their right to work if they so wish.
The rules obliging the owners of agricultural, livestock and forest enterprises to provide accommodation for their workers, and pay due attention to their health and education are very promising in theory, but unfortunately, rarely respected in practice.
Women are discriminated against for certain types of work. For instance, they are forbidden to work at night or do dangerous, health-threatening or excessively strenuous jobs.
To be noted is that relevant prohibition of the Labour Code considers women in the same light as minors under 18, in that the adult woman is afforded the same special protection as they.
The rules protecting maternity cover rural women provided they have a work contract but in practice they are hardly ever implemented. A major problem for rural women is ensuring that their children are looked after while they work. The Instituto de Bienestar Familiar (Family Welfare Institute) is organizing a system of rural substitute homes in an effort to provide a partial solution to this problem.
Temporary work is another area where rural women lack protection, since they do not usually have contracts and are therefore denied the social security benefits they should receive.
A review of the Colombian situation shows that:
(a) Women receive lower wages due to their lack of qualifications or to the type of work they do. More importance has traditionally been attached to men's work; and even when men and women do the same work, it is felt that men should be paid more;
(b) women are often paid on a piece-work basis - a practice that has increased the number of hours they work per day;
(c) women are preferred for temporary jobs;
(d) in addition to their work outside the home, they also have their domestic tasks, without labour-saving appliances or help from other members of the family;
(e) more and more rural women are becoming heads of household and having to assume sole responsibility for the family under more difficult conditions than those facing men in a similar situation; and, finally,
(f) the rural woman wishing to join the economically active population has serious obstacles to contend with if she is to obtain work.
The Colombian rural woman's situation is thus a rather difficult one. Moreover, her work is not very highly considered by society or even by herself. She often wishes or needs to go into the labour market in search of paid work, and therefore should be given the opportunity to do so.
The Family Welfare System
It seemed appropriate to give a brief description here of Colombia's Family Welfare System, for the innovation that it represents in that family welfare is considered a right - a right that may be claimed through a system of services - legal, nutritional and state welfare. The supplying of these needs is now deemed to be a public service.
Funding for the Colombian Family Welfare Institute (ICBF) is provided by, inter alia, the country's public and private companies, all of which contribute 3% of the monthly payroll. As an incentive, the contributions are deductible for income and other tax purposes. The service is available throughout the country.
Special mention should be made of the nursery facilities and substitute homes service which has helped reduce the mothers' workload and, above all, improved the well-being of children and minors .
The substitute homes are a relatively new kind of child care facility, operated by mothers who are chosen by the local authorities and are given due preparation to look after up to 15 minors in their homes, in exchange for a countervailing help (it is not looked on as a salary) in cash and in kind. These substitute homes are being set up in the rural areas to respond to one of the rural working women's most widely-felt needs.
4. Access to Land
Several studies on rural women's access to land have been carried out in this country. They show that women are much less likely than men to acquire land, and, when access is possible, it is to a dwarf holding or on a precarious tenure basis. The reasons for this are both cultural and legal. The main obstacle is cultural in that male farmers are given priority to land because the public authorities in charge of the allocations land think that men are better able to cultivate it.
Where the legal reasons are concerned, the decision to allocate land to the family stepped up land allocations to men, as they were traditionally considered the head and representative of the family group. Under Act No. 30 of 1988, where the purpose was to change this, it is now possible to allocate land to natural persons over 16 and to heads of household. These persons may hold the land individually or jointly with their spouses or regular companions with whom they shared responsibility for the minor children, or with relatives (up to the second degree of consanguinity) in their care. It is still too early to assess the effects of this law and gender-disaggregated statistics are not available.
5. Access to Credit
Rural women's difficulties in gaining access to credit also have to do with their lack of access to land. Many institutions primarily involved in agricultural development have set up special departments in an attempt to increase the flow of credit to rural women, and special lines of credit have been established in institutions such as FINAGRO - Fondo Financiero Agropecuario (the Agricultural Investment Fund), INCORA - Instituto Colombiano de Reforma Agraria (the Colombian Agrarian Reform Institute), DRI - Fondo de Desarrollo Rural Integrado (the Integrated Rural Development Fund), CORFAS Corporatión de Fomento de Apoyo de Empresas Asociadas (Development Corporation for Support to Associated Companies) and Crédito Rural Financiero (Rural Credit Bank).
Statistics on the number of rural women loan beneficiaries and on the proportion of those not offering a mortgage security were not available. In any event, most of these institutions have suggested that security other than real estate, e.g. harvests, the benefits obtained with the loan, or farm tools, should also be accepted. Despite this, long-term credit is still conditional upon the ability to offer mortgage security, and the husband is often asked to be a joint debtor.
As technical assistance is directly related to credit, women's access to it is in a similar proportion here.
6. Access to Technical Training
Although statistical data on the number of rural women beneficiaries were not available, agricultural development-oriented Colombian institutions do provide programmes especially for women: the Ministry of Agriculture/UNICEF, the Colombian Agrarian Reform Institute (INCORA), the National Apprenticeship Service (SENA), the Integrated Rural Development Fund (DRI) and the Integrated Agricultural Technology Transfer Service (SINTAP).
Although rural women now have many more opportunities for training, two problems have been noted: one, large numbers of women fail to take advantage of these opportunities; and two, those who do have difficulty finding work after training. Both problems here are cultural in origin and have nothing to do with legislation.
7. Participation in Organizations
Rural women's participation in economic and farmer organizations has been growing slowly but steadily. The Government has been eager to encourage this trend, opening up opportunities for them to be members of agricultural and credit institutions. Mention should be made of the Asociación Nacional de Mujeres Campesinas e Indígenas de Colombia - ANMUCIC (the National Association of Peasant and Indigenous Women of Colombia) which is represented on the INCORA committee and in agricultural credit institutions such as FINAGRO. The Colombian Government has also accepted women on the Boards of Management of the National Rehabilitation Programme, SENA and DRI, and their participation in the cooperative movement has also increased.
II. RURAL WOMEN AND LEGISLATION IN CUBA 56
(56 Based on the study by COLUMBIE MATOS, I. 1989. Situación de la mujer campesina frente a la legislación. El cave de Cuba. La Habana, FAO Consultant's paper. p.115.)
The laws passed since the major political, economic and social changes that have taken place since 1959 have reflected Cuba's new social concerns, among which is equality between the sexes occupies an important place.
The early 'sixties saw the establishment of the Federación de Mujeres Cubanas (the Cuban Women's Federation), a body that was to play a major role in the Cuban women's rights movement.
Through legislation and ways and means of making it effective, the Cuban Government has sought to bring about an integrated approach with a view to achieving equality between men and women, emphasizing the role of women, the family and society. The strategies adopted aim at strengthening the role of the family and stress the need for family members to share domestic duties. To make this possible, the Family Code seeks to harmonize the activities of the family group members so that the domestic workload does not fall on the woman's shoulders alone, at the same time trying to raise fathers' awareness of their responsibility.
1. Constitutional Law
The Cuban Constitution (Article 40) states that all citizens have equal rights and responsibilities. It establishes universal suffrage and grants all citizens, in accordance with their merits and capabilities, the right to hold posts and responsibilities in Government and the Public Administration, and, also, to be eligible for appointment to all ranks of the Revolutionary Armed Forces and Security and Police Forces.
2. Civil Law
Most of the rules pertaining to the family are contained in the Family Code.
Restrictions on legal capacity are found only in positive legislation. They refer to age and physical or mental incapacity, but never to a person's sex or the consequences thereof.
The norm is the property of conjugal partnership, which applies to all legally constituted marriages and to consensual unions, the latter being recognized by the law when they meet the requirements of exclusivity and stability. Divorce is by mutual consent, and the notion of blame has been removed so as not to affect the spouses' attitude to each other after the separation.
This is nowhere contemplated in the legislation; husband and wife enjoy full equality. However, egalitarian ideas have been slow to spread to the wives of workers in isolated areas, who maintain the traditional view of the woman's role in society. These women are more dependent on their husbands, and sometimes even accept the authority of one of their sons in the absence of their husbands.
This is held by the fathers, but the law states that the district attorney's approval is required in order for them to dispose of a minor's property for benefit or out of necessity.
The surviving spouse has a right to inherit on a par with the other heirs in intestate succession. The notion of "specially protected" heirs exists in testamentary succession: the testator is free to dispose of only half the estate and may not encumber the portion due to the heirs.
Unless the legislation prescribes otherwise, land belonging to small farmers may be inherited only by those who work it personally, i.e. the widow or widower who has lived with the deceased until his or her death, heirs who have no income of their own or are pursuing their studies. In other words, the woman will be entitled to the land because she has worked it personally, in her capacity as widow, or when she has no income or is a student.
De Facto Onions
The de facto union is legally accepted upon judicial decision provided the requirements of exclusivity and stability are met. It then has the same effects as a legally constituted marriage.
The Family Estate
The jointly owned property is protected by law. It may not be alienated, seized or encumbered, but may be transferred where the law so provides. The family dwelling is protected by special legislation governing the right of enjoyment, and under no circumstances may those living in it (the members of a family) be stripped of that right.
3. Labour Law
In a socialist economy work is a right, a duty and an honour. Women have the same labour rights as men. Any differentiation is intended to give them greater protection because of their role in procreation. No jobs are ruled out for women, but some are not recommended.
The woman temporary or seasonal worker in possession of a worker's card is also entitled to paid maternity leave, even when the start of this leave does not coincide with her work cycle. There is also a Working Woman's Maternity Act and a Work Protection and Hygiene Act.
Education for the rural woman was given such priority that by 1961 illiteracy had been eradicated. The National Education System runs primary, secondary and pre-university schools in the rural areas, and schooling is compulsory up to the ninth grade.
In addition to the country's employment policy and the authorities' efforts to ensure women's participation in the labour market, a system of child care institutions has been set up to provide day care for the children of working mothers. Also, women with elderly or infirm parents or retarded children need not stay at home to look after them, as special homes have been created for this purpose.
There are no other regulations covering working women except those mentioned. The reason why there are so few is that women have equal rights.
It is safe to say that the only constraints in present-day Cuban society are erroneous beliefs, vestiges of the past. For instance, women are discouraged from taking up novel technical careers, and their access to management or other posts traditionally considered as being reserved for males is restricted.
4. Access to Land
The Constitution of the Republic proclaims that the State recognizes small farmers' ownership of their land and other production facilities. Small farmers are also entitled to form associations, in the manner prescribed in the legislation, in order to improve agricultural production or obtain credit and State services.
The small farmers' property includes the assets that are part and parcel of agricultural production: land, buildings, installations, facilities and tools, animals, plantations, fruit and other agricultural and forest products.
There has been a shift away from private rural property toward a cooperative system, where farmers form voluntary groups to work the land. The system favours the application of modern technology and a more efficient use of equipment and human resources. According to data provided by the National Small Farmers' Association (ANAP), more than 60% of the land belonging to the peasant sector has been brought under the cooperative system.
5. Access to Credit
The National Bank of Cuba is the institution in charge of granting loans to the cooperatives and small farmers.
The law provides that credit shall be granted to farmers producing a certificate issued by the Ministry of Agriculture showing that they have permanent or temporary possession of the land they habitually work. In other words, credit is granted to the persons in possession of the farm, be they men or women.
The loan security is neither the land nor the production resources (the Agrarian Reform Act stipulates that neither may be seized), but the marketable output, which is in turn guaranteed by the Government as it forms part of the national economic plans.
Private farmers pay a basic interest rate of 6%, and, as an incentive in their case, cooperatives 4%.
6. Access to Technical Assistance and Training
Technical assistance is available to all; and there is no discrimination against women. Rural women's attendance at intermediate and higher level technical courses has increased; and women are said to fill one third of the agricultural technicians' posts. However, lack of understanding and support, or of confidence in their skills, stemming from persisting cultural prejudices, particularly in the countryside, make their integration in these jobs rather difficult.
7. Membership in Organizations
The opportunities open to Cuban rural women include ANAP, a peasant organization, whose members hold 25% and 24% of the posts on the Provincial and Municipal Committees, respectively, as well as the cooperative system (although their membership here has declined as more and more women are opting to further their education). They also participate actively in the Cuban Women's Federation, which has a membership of three million.
III. RURAL WOMEN AND LEGISLATION IN EL SALVADOR57
(57 Based on the study by CASTRO DE PINZON, E. 1990. Informe final sobre la situación de la mujer campesina frente a la legislación en El Salvador. San Salvador, an FAO Consultant's Paper. p.130.)
The legal situation of rural women in El Salvador has suffered, among other reasons, because of the long civil war which drove rural men to leave their homes, and led to the development of temporary relationships. The gradual deterioration of the peasant economies and the lack of progress with egalitarian legislation to benefit women have resulted in a situation of de lure and de facto inequality, leaving the Salvadoran rural woman in a legally ill-defined position, which makes it very difficult for her to claim equal civil and labour rights and access to productive resources.
1. Constitutional Law
Article 3 of the Constitution states that all persons are equal before the law. There can be no restrictions on civil rights based on nationality, race, sex or religion. Hereditary jobs and privileges are not recognized. The Constitution grants individual, social and political rights to all Salvadorans without distinction.
2. Civil Law
Some rules discriminate against women. Article 132 of the Civil Code lays down that: spouses shall owe each other fidelity and assistance in all circumstances. The husband shall protect the wife and the wife shall obey the husband. Article 183 provides that the husband may oblige the woman to live with him and follow him wherever he chooses to establish residence. Under this rule, the husband may withhold support and maintenance if the wife refuses to follow him.
The norm is the separate property regime. Provision is made for marriage settlements, but these are not met with in practice. Each spouse therefore retains and administers his or her own property.
Household expenses fall under the conjugal property regime and, in the case of separate administration, responsibility lies first and foremost with the husband.
The husband has authority over the wife's person. The legislation expressly provides that the woman shall obey her husband and that the husband may oblige the wife to live with and follow him wherever he sets up residence.
Parents are equal before the law with respect to family rights and duties.
There are no restrictions on freedom of disposal of property by will in El Salvador: the spouse or companion may inherit under testamentary succession, but may also remain totally unprovided for, should the testator, using the freedom of disposal provision, decide to exclude him or her. In the case of intestate succession the wife is one of the heirs, but not the companion or the illegitimate children. This has dramatic consequences in a country where most unions are of the consensual kind.
De Facto Unions
This type of union is extremely common in the countryside (where it accounts for 61.7% of all unions), with the result that 70% of rural children are illegitimate. This points up how few women enter into a marriage contract in a country where consensual unions are not recognized by the law. Thus, the poor rural woman finds herself totally unprotected when the union breaks down or in the case of intestate succession and succession to land allocated under agrarian legislation.
Although recognized by the law, there is a general lack of concrete provisions on the family estate and the corresponding rights of succession. The law also fails to stipulate clearly which courts and authorities are to deal with family estate matters, with the result that the law itself is inoperative.
3. Labour Law
Although a number of rights have been won in this field, discrimination against women in general, and rural women in particular, persists both in statute and customary law.
The Labour Code bars young people under 18 and women of any age from unhealthy and dangerous work, but does not consider dangerous agricultural work under the same heading.
Maternity benefits do not extend to women farm workers. Maternal privileges do exist for women working with contracts, but employers disregard the obligation to keep their jobs open for them, and, on returning to work after maternity leave, women often find they have been downgraded. The legislation stipulates that employers shall provide nursery facilities, but makes no provision for the mother's right to breastfeed her child during working hours.
The law states that both men and women may enter into crop and livestock farming and commercial contracts. Most contracts are verbal and there is no discriminatory legislation in any productive sector. However, because legislation and monitoring by the Ministry of Labour are lacking where certain "minor" activities, such as the milking of cows, the threshing of maize, or the feeding of poultry are concerned, women are sometimes prey to injustices, such as being denied the minimum wage and the right to social benefits.
Men and women have equal rights to social security; the insured person's spouse or regular companion is entitled to the same medical services as the insured person.
Although the written labour provisions treat men and women workers equally, there are, in practice, blatant cases of noncompliance and unfair treatment.
4. Access to Land
There are no special rules preventing the rural woman from acquiring land or inputs but, in practice, priority is always given to the husband. Also, as the woman has difficulty in getting work, she cannot rely on her own income to purchase property.
As regards the rural woman's access to land, the Basic Agrarian Reform Act (Decree No. 153) establishes three types of property in El Salvador: cooperative, State and private. In general, the agrarian reform process made it possible for 20% of women to acquire land earmarked for productive projects and to increase their household income. Although the owners are the cooperatives, the women have possession, and receive the profits, and training.
Article 1 of the Act for the Allocation and Transfer of Agricultural Land to the Croppers (Decree No. 207) stipulates that "the State shall purchase real property that is not being worked personally by the owners and allocate it to those effectively working it; it shall furthermore recognize their preemptive right to acquire the ownership and possession of that property". This Act discriminates against widows, and separated and elderly women who are unable to work the land personally. Some 70% of the expropriations concerned women: after the owners had been expropriated, 3 500 individual title deeds were issued to women and 31 500 to men (i.e. women gained access to one tenth of the land available), and of these 3 500, some 2 800 renounced.
Another problem, also related to land tenure, with which the rural women of this country have to contend, is the instability of their marriages or consensual unions due, among other reasons, to the war. The law does not take this reality into account but protects the family group by considering the allocated land as a family asset.
Moreover, despite all the legal instruments and mechanisms available, the agrarian transformation process has failed to meet the needs and aspirations of rural men, and failed even more to incorporate rural women into development. Rather, it has led to urban-rural imbalance, given the injustices committed under the land expropriation scheme and the serious marketing problems that farmers' indebtedness causes.
To conclude, the agrarian reform process has not helped the rural woman gain access to land. In practice, the man is considered head of the household.
5. Access to Credit
The rural woman has very little chance of obtaining this productive resource. Enactments such as the Agricultural Development Bank Act, the Rural Credit Act, the Small Enterprise Investment Fund Act, the National Industrial Development Bank Act, the Central Reserve Bank Economic Development Fund Act, the El Salvador Cooperative Associations General Act and the Act establishing the Salvadoran Agrarian Transformation Institute do not contain discriminatory rules, but they are difficult to implement given the illiteracy rate among women, male chauvinism and the disregard for the rights of the spouse or regular companion, who has worked alongside her partner to purchase farming implements. The civil war that the country is currently going through further aggravates the problem.
Most loans are taken out by men. Of the 2 000 loans granted, only 3% were allocated to women. Besides, access to inputs and credit is dealt with by the family, as a group. A woman's application must also be signed by her husband, as she cannot on her own offer mortgage or collateral security. She may gain access to credit if she is a widow, but priority is usually given to the eldest son. In any case, the woman then has to contend with a long, slow credit application process (which limits her chances since, with her domestic duties and children to look after, she has very little free time) and a general lack of recognition of her role. This is reflected in the fact that only one of the 8 000 loan recipients in 1989 was a woman.
6. Access to Technical Training
The civil war has made it even more difficult for Salvadoran women to obtain technical training. Data on their attendance in courses were unavailable, but the training provided for rural women in this country is usually closely linked to their activities in the reproductive field.
7. Membership in Organizations
Most women participated only in organizations closely connected with their role as homemaker, not as producer.
IV. RURAL WOMEN AND LEGISLATION IN MEXICO58
(58 Based on the study by TORRES FALCON, M. 1989. Situación de la mujer campesina frente a la legislación mexicana. An FAO Consultant's paper. p.115.)
The rural woman's status has improved in recent years, especially since the Decade for Women. However, progress in the legal field has not been homogeneous, as marital authority is still the rule in several States. Paternalistic and discriminatory customs clash with the law and sometimes hinder its implementation.
1. Constitutional Law
The Political Constitution of the United Mexican States, promulgated in 1917, establishes full equality for men and women. The same spirit of equality prevails throughout Mexican legislation.
2. Civil Law
Mexico has 31 free, sovereign States, each with its own legislation, into which most have incorporated the Federal District Civil Code and the 1974 Civil Code that provides for the equality in law between men and women. Some, however, such as Agua Calientes, Durango, Nuevo Leon and Sonora, still have discriminatory laws.
The State of Zacatecas enacted Family and Family Procedure Codes in 1983, and there are plans for similar Codes for the States of Chiapas, Sinaloa and Nayarit. The following paragraphs refer to the provisions of the Federal District Civil Code and the Hidalgo State Family Code. Reference is made to the individual State Civil Codes only when their provisions conflict with or differ from those mentioned above.
Upon marriage, the spouses must draw up a settlement establishing the property regime they wish to adopt. The current Code recognizes two regimes: the conjugal property regime (total or partial), and the separate property regime. The Hidalgo Civil Code also recognizes a mixed regime, equivalent to a partial conjugal property regime.
Under the conjugal property regime, the assets are controlled and administered jointly by the spouses, who are also free to amend the regime as they wish. In a partial conjugal property regime, the assets excluded from the estate belong to the spouse who owns them.
The States of Aguas Calientes, Sonora and Oaxaca provide for two types of conjugal property: voluntary and legal. The former is governed by the agreement between the partners, while the latter consists in the creation and administration of a common estate (separate from each spouse's personal property), over which the husband holds sole and full responsibility; the woman may administer it only in special circumstances. If the marriage is dissolved, the guilty party is not entitled to his or her share of the after-acquired property. If the spouses fail to come to an amicable agreement, the property passes to the children, and if there are no children, it is divided proportionally to the amount of assets each spouse brought to the marriage. If the separate property regime is chosen, each spouse retains the ownership and administration of what is his or hers.
When there is agricultural property, the marriage is considered to have been entered into under the separate property regime.
The husband holds authority over the wife's person in the States of Durango, Aguas Calientes, Sonora, Nueva Leon, Oaxaca, Guanajuato, Michoacán and Tabasco. The law restricts the woman's right to work when the husband thinks this will result in the neglect of the children and the home.
The 1974 Civil Code reforms established that parents have equal authority over their children and equal responsibility for their education and the administration of their assets. Husband and wife are also equally responsible for providing for and educating their children and for the size of their family.
The testator has limited freedom of disposal with respect to maintenance due to men and women alike. The surviving spouse may therefore contest a will if he or she was due maintenance from the testator. The same rules apply to de facto unions, enjoying official recognition as common-law marriage.
Women inherit agrarian rights from their husbands, by virtue of which they become "ejido" members, with the prerogatives and responsibilities that this implies.
De Facto Unions
If the union appears to be permanent (i.e the couple has cohabited for at least five years) it is deemed to be that and produces its effects at law. For it to be recognized as a common-law union, the partners must also be free of legal impediments to contractual marriage.
The 1928 Civil Code, updated in 1974, recognizes for the first time that cohabitation may produce certain legal effects: the right of one partner to be one of the other's heirs, and the right to maintenance and to compensation following the death of a working partner or following a work-related accident.
The Hidalgo Family Code devotes a chapter to cohabitation which it equates with marriage provided that: the man and woman have cohabited peaceably, publicly and continuously for more than five years, are free of marriage ties and have registered their union in the Register of Marriages. The application for registration must include a statement as to the property regime chosen: conjugal, separate or mixed.
The institution of common-law marriages does not appear to be sufficiently well-developed in the State Civil Codes.
As regards rights under the agrarian law, the Federal Agrarian Reform Act empowers the ejido member to designate a successor from among the spouse and the children or, in their default, the person with whom he cohabits more uxorio, provided that intended inheritors are his dependents. In an intestate succession, the person with whom the de cujus cohabited and had children takes second place.
In order to ensure that family members meet their obligation to assist each other, the Civil Code establishes the possibility of drawing up a separate family estate, comprising certain specific items such as the dwelling and, in some cases, a plot of cultivable land. The beneficiaries are the spouse of the person establishing the estate and the persons he or she is obliged to provide for. The assets included in the estate may not be alienated, seized or encumbered. The law also establishes the minimum value of the property and a special procedure for setting up the estate.
Each family may form only one estate. The beneficiaries do not own the property in question, but have the right of enjoyment thereof, are obliged to live in the dwelling and, where applicable, cultivate the plot. A family estate may be established by men or by women. The lawmaker's intention in establishing this institution was to ensure family members a decent living and some measure of economic security. In practice, this has not been realized, and the family estate has remained a purely legal institution for several reasons, namely:
- It is not applicable to ejido members, as they do not own land and, in any case, would be unnecessary, since the legislation gives the same preferential treatment to ejido property;
- it is not applicable, either, to peasants who have applied for and complied with the requirements to obtain land but are still awaiting allocation and, by that token, have no property to include in a family estate; and
- a family estate may be established on small agricultural holdings provided the above conditions are met, but it would lapse if the family stopped cultivating the land for two years. It would also lose the guarantee whereby it may not be appropriated by the government and divided among landless peasants.
The main reason why this institution is not used, however, is that once property becomes part of a family estate it may no longer be used as security for loans.
The Hidalgo Family Code contains an express provision to encourage the establishment of family estates: it grants corporate status to the family, which it recognizes as the holder of rights and obligations. In other words, the family, and not its physical members, becomes the owner of the family estate. The Code also provides that the Government shall sell State-owned land to persons with the legal capacity to establish a family estate. The price and terms of payment will be set in accordance with the family's economic capacity. This provision has not yet been implemented, however.
3. Labour Law
Men and women over 16 and men and women under 16 but over 14 (provided they have permission) are free to enter into contracts.
A woman has full legal capacity, whatever her marital status. In 1974, some of the rules prohibiting women from doing certain jobs were repealed. The protection of maternity has been made a social obligation and the idea of moral protection for the working woman has been abandoned.
The Labour Code comprises a special chapter on agricultural workers (i.e. those habitually engaged in crop, livestock and forestry activities for an employer), completely free of discriminatory rules. Women continue to be discriminated against, in practice, however.
Many rural women do a variety of paid jobs without any protection at law whatever. Temporary jobs are a case in point. They are paid on a piece-work basis and are not usually covered by contract. The rural woman wage-earner works under difficult conditions. She is paid less than the man and works one-time shifts. Her job is usually temporary or paid on a piece-work basis, so she is not considered a worker under the terms of the law and therefore does not receive the corresponding benefits. When the man has too much work, the women helps out with the productive activities, but when it is the reverse, the man does not share the domestic tasks.
Although the woman's economic contribution is extremely important for the peasant economy, this has given her neither the social recognition she deserves nor equality with the man.
4. Access to Land
Agrarian distribution began in the wake of the 1910-1917 Mexican revolution. Its aim was to replace the unproductive large estates by new forms of land tenure: ejidos and communities.
According to the 1971 Federal Agrarian Reform Act, the ejido is the organizational unit designed to meet the community's agricultural requirements through the integrated and rational use of available resources. The ejido has corporate status and its assets may not be alienated, surrendered, seized or transferred.
As regards the individual's capacity in agricultural matters, the Act expressly recognizes equal rights for men and women with respect to the allocation of ejido land units. It nevertheless grants priority to persons with families in their care. Even though the emphasis is on economic need and not on the traditional concept of the male head of household, this concept continues to prevail in practice, which is why there are so few women ejido members (less than 6% in 1981). Also, women usually become ejido members when they inherit the rights from their husbands and not through land redistribution agrarian policies.
One of the constituent elements of the ejido estate is the Women's Industrial Agricultural Unit (UAIM), where the aim, according to the Federal Agrarian Reform Act (Art. 103, 104 and 105) is "the establishment of a crop and livestock farm and agricultural and rural industries, collectively run by women over 16 who are not ejido members". The farm in question should be the same size as a family unit. It does not have corporate status as it is part of the ejido, and cannot, therefore, be used to obtain direct loans.
When land is released to peasant applicants, the ejido is divided so that one portion is allotted to each family. The land to be handed over to the UAIMs (and, according to the law, it must be of the best quality) is chosen at the same time.
All the women ejido members together receive one plot the same size as that allocated to each family, with the result that they can hardly do more than grow vegetables for their own consumption.
Although in theory all the ejidos have a UAIM, in practice this is not so. Besides, these units are a way of confining the women to a small space, exploiting their labour (usually unpaid), and preventing their effective incorporation into the communities' real productive process.
To sum up, Mexican women have little access to land and the little they have is gained through succession.
5. Access to Credit
The 1976 Rural Credit General Act sets out the conditions for participation in and the operation of the official rural credit system. Article 54 expressly recognizes the rural woman as a potential credit beneficiary within the meaning of Article 103 of the Federal Agrarian Reform Act. The latter refers to the incorporation of the UAIMs, and Article 59 establishes the order of priority for loan allocation, placing the rural woman at the top of the list, together with the ejidos, communities, cooperatives and higher-level organizations.
In practice, however, women have not received credit due to the banking institutions' shortage of funds, lack of organization on the part of the women and the fact that too few productive projects have been earmarked for the UAIMs.
6. Participation in Economic and Agricultural Organization.
Rural women's participation in these organizations has not increased significantly. Almost all the programmed are based on a partial perception of the real world of rural women, whom they try to organize from without and from above.
When the women were responsible for finding ways of organizing themselves, the public institutions limited their contribution to supporting community self-management efforts. Better results have been obtained in this way, although the women's motive here is to supplement their husbands' income to meet their household requirements.
V. RURAL WOMEN AND LEGISLATION IN VENEZUELA59
(59 Based on the study by YRURETA, G. 1989. Situación de la mujer campesina frente a la legislación, El Caso de Venezuela. Santiago de Chile, FAO Consultant's paper. p.120.)
One aspect of the process of change currently under way in Venezuela is a growing awareness of the leading role to be played by women in development. The Government has signed and ratified numerous international agreements highlighting the need for fairer legislation for women in general, and for rural women in particular. Since 1989, Venezuela has had a Ministry for Women, headed by a minister without portfolio, who is assisted by the Ministry of the Family.
Nevertheless, Venezuelan law does not usually specifically cover the situation of rural women. This "neutral" stance is often a cause of injustice for, although the legislation does not intend to discriminate against women, the fact that it is neutral is, in practice, discriminatory.
1. Constitutional Law
Venezuela's Constitution affirms equality before the law and does not countenance "discrimination whether by race, sex, creed or social condition". It in no way discriminates against women, who may hold any job and public office whatever. By protecting the family it seeks to safeguard marriage and promote the family estate as something that may not be encumbered in any way.
As regards peasant rights, Article 105 guarantees farmers' and landless rural workers' access to land and to the inputs needed to make it productive.
2. Civil Law
The Civil Code contains no discriminatory provisions. On the contrary, it establishes full equality between men and women. All references are to "persons", without distinction of sex. As regards capacity in the married state, husband and wife have the same rights and duties.
The rural woman worker has sufficient capacity to enter into any contractual agreement needed for agricultural work. It is not the law but the prevailing circumstances that prevent her from exercising her rights here.
Couples have a choice of two types of marriage regime. The one that usually applies to all marriages unless the partners stipulate otherwise is the community property regime. The other, the marriage settlement, is less frequently used and requires the spouses to draw up a notarial deed.
Articles 151 and 154 of the Civil Code define the spouses' assets as the property belonging to the husband and wife at the time of the marriage and those acquired by way of grants, succession, bequest or profit during the marriage.
Under the community property regime each spouse may administer his or her property, but both must give their consent to alienate any part of the joint estate. Upon dissolution of a marriage the jointly held assets, i.e. the property purchased during the marriage, the property acquired by the spouses through their respective profession or activity, and the fruits* of the jointly held property, obtained during the marriage are divided equally.
Under the marriage settlement regime, the assets are not brought under a joint estate and each spouse is free to administer and dispose of his or her property. If the marriage is dissolved, each spouse retains what is his or hers.
There is no specific provision in Venezuelan law for husband's authority over his wife. Spouses are considered equal before the law. However, in the countryside, the husband is by tradition the head of the household and the administrator of his wife's property - and person.
The father and mother hold joint responsibility for the care, education and representation of their children, and for the administration of their children's property (Art. 26, 264, 267 and 282 of the Civil Code).
''Marriage creates rights of succession for the spouse of the deceased, except in the case of a separate property regime and the legal separation of the spouses" (Art. 283 of the Civil Code).
Under the conjugal property regime, the assets are shared equally: one half belongs to the surviving spouse who, together with the children, is also one of the beneficiaries of the other half (belonging to the deceased), which is shared equally among the heirs (Art. 284 of the Civil Code).
The Civil Code provides for this institution, stating that it comprises the main dwelling house, which shall not form part of the estate of the person who establishes it and may not be offered as security to creditors. A family estate may be set up in favour of persons living at the time of its establishment or for the benefit of a given person's future direct descendants." In the event of the dissolution of the marriage, whichever spouse is awarded custody of the children is entitled to the dwelling.
At the same time, the Agrarian Reform Act (Art. 102) provides that the National Agrarian Institute (IAN), may declare all or part of the land allocated under the Act a family estate at the request of the person concerned. This estate may not be alienated, divided, seized or encumbered, and may be excluded from any other preventive or executive judicial measure, except on the grounds of public utility. However, that this legal institution is largely ignored.
De Facto Unions
There is no description of the de facto union in the Civil Code, but reference is made to it in the title dealing with the "joint ownership" (Art. 767): "unless there is evidence to the contrary it shall be assumed that there is joint ownership in cases of a union without marriage, when the woman or, as the case may be, the man shows that the couple has lived together in a permanent relationship, even though the property whose joint ownership it is required to establish may appear in one of their names alone".
Consensual unions are very common in the countryside and many problems have arisen due to the wording of the above Article 767, especially in cases where a separated spouse has brought a claim against the common-law wife of an agrarian reform allottee who has worked and developed the land alongside her partner. In an attempt to solve the problem, the following new wording has been proposed: "joint ownership of agricultural property shall be presumed in all cases of cohabitation without marriage of agrarian reform allottees, provided the woman produces evidence that she has cohabited and worked with the man in cultivating and developing the plot, irrespective of the fact that one of the two may be legally married".
3. Labour Law
1. All the rules contained in the Labour Act and its enforcement regulations apply equally to men and to women, except those provisions which are drawn up specially for women and intended their for protection.
2. The labour laws do contain provisions barring women from certain tasks, but they are not enforced.
3. With respect to the protection of maternity, the law stipulates that a mother shall not lose her job should she fall ill due to pregnancy. In the case of dismissal, it prescribes adequate compensation for the support of the mother and child, provided that the mother is a beneficiary of the compulsory Social Security system. The woman is entitled to an equal wage and the law obliges every establishment employing more than 30 women to provide rooms where mothers may breastfeed their children up to the age of one year.
4. The regulations under the Labour Act classify rural workers as either permanent or temporary/casual. They do not discriminate against women, but establish conditions that are less favourable to the rural than to the urban worker. Female peasants have particularly difficult working conditions, given the variety of jobs they have to do, the fact that modern technology is not often used, and that women wage-labourers and small farmers are very poorly paid. All this discourages and drives women into the towns in search of better opportunities.
The woman is also at a disadvantage vis-à-vis her male counterpart, in that:
(a) in addition to her farming activities she also performs the domestic tasks and looks after the family garden and farmyard, yet her contribution to the productive work goes unrecognized;
(b) employers prefer to recruit men farm workers;
(c) men are the main beneficiaries of land and credit allocations;
(d) the peasant family's agricultural tools are always purchased under the husband's name, which makes it easier for him to put them up as security to obtain credit;
(e) the woman is often paid less than the man for similar work; and
(f) women's training programmes are designed to improve their performance of household duties. The rural working woman is not protected by the Social Security system since it does not accept temporary or casual rural workers as members, and the employers of the few women farm workers who do have permanent jobs do not usually officially register them for such benefits. The rural woman therefore works without social security coverage. Should she become pregnant, she has to work all through her pregnancy and return to work immediately after the birth, without taking the period of rest prescribed for breastfeeding.
Rural women, however, have become increasingly aware of their role and, with the support of Government agrarian reform agencies, have now managed to obtain plots of land and the inputs needed to develop them.
Special women-oriented sub-programmes have also been established to prepare women for, and bring them into, the education system with a view to later incorporating them into the productive process. For instance, the National Agricultural Institute (INAGRO), aware that women are a valuable resource for the production sector, is helping rural women to recognize their potential, find their own solutions to the priority problems in their communities, reassess the role they can and should play and, finally, shake off the distorted image that prevailing cultural patterns project on to them.
4. Access to Land
The Agrarian Reform Act makes no distinctions between men and women where land allocations and credit are concerned, and usually refer to "beneficiaries" or "parents". Things are slightly different in practice, and even if allocations to women have increased over the years, it is desirable that a realistic approach be adopted, to ensure that every woman farmer may hold possession of, and the title deed to, her land and receive sufficient incentives to be able to cultivate it.
As regards succession, the heirs must agree to continue to manage the land, otherwise the National Agrarian Institute (IAN) may order a report and declare the adjudication extinct and transfer the plot to a family member who meets requirements. This rule has not given very satisfactory results for, although it does not distinguish between the death of the man or of the woman, as 75% of the allocations are held by men, the widow will usually be just one among the potential heirs.
It is a common knowledge that women work the land alongside the men even if they are not the allottees. The law should therefore clearly state that the administration of the land falls to the spouse - legitimate or common-law - upon the death of the allottee.
Mention must be made of the institution of "agrarian protection" (amparo agrario), established under the Agrarian Reform Act. Under Article 148 which farmers with an unclear title may apply for permission to remain on (i.e. not to be dispossessed of) the land they cultivate, save where IAN rules otherwise. Once the owner or holder of the right in rem is notified that agrarian protection has been accorded, he or she must immediately turn the land over to the beneficiary and cease the nuisance.
5. Access to Credit
Although the Agricultural Development Bank Act does not have a special programme for them, rural working women have always been granted credit provided they meet the requirements.
The Cooperative Associations General Act supports nonprofit economic activities initiated by members with limited economic resources, thus encouraging the provision of goods and services for production and consumption activities.
Article 9 of the Crop and Livestock Credit Institute (ICAP) Act provides for the granting of loans to persons under 21 who are beneficiaries under programmes sponsored by State-run agricultural agencies.
Few rural women are property owners, so it is difficult for most of them to obtain loans that require pledges of farm machinery, crops or livestock. However, institutions such as IAN and ICAP usually accept a mortgage on the allotment, so that a woman who has been allotted land may seek a loan (and this has prompted the establishment of associations or cooperatives within the ICAP-supported women's groups) but there are limitations in the case of a woman who works land owned by others or on their husbands' allotments. In the latter case they need their husbands' authorization to mortgage the land.
6. Access to Technical Training
The main institutions involved in training programmes for farmers are INAGRO (Agricultural Training Institute), CIARA (Agrarian Reform Training and Applied Research), UEDA (State-Run Agricultural Development Units) and UTODA (Agricultural Development Technical Unit). All come under the Ministry of Agriculture, assisted by IAN. These institutions all have special sub-programmes to prepare women for and bring them into the education system with a view to later incorporating them into the production process.
Despite these institutions' efforts, the results show that most women tend to join traditional programmes dealing with problems directly associated with the home. Very few women gain access to agricultural mechanization, peasant economic organizations or crop or animal husbandry programmes.
The UEDAs' responsibilities include technical assistance and the implementation and monitoring of programmes in the federal agencies.
7. Participation in Production Organizations
One of the Agriculture Ministry's most widely disseminated women's programmes since agrarian reform is the Homemakers' Clubs, where the aim is to encourage rural women with families to form groups and participate in the economic and cultural life of their community. These clubs have work projects specially geared to providing instruction in agricultural, artisanal and homemaking skills. They have a membership of some 300 000 throughout the country, but they all attach secondary importance to farm activities, and the only "agricultural" project under implementation is the home gardens project.