Chile: State upholds gender discrimination within marriage

Discrimination against married women under the law providing for joint ownership of marital property led Sonia Arce Esparza to take the Chilean state to the Inter-American Commission on Human Rights (IACHR) in 2001. An amicable agreement reached in March this year has not been implemented. On Feb. 28, 1976, Arce married Patricio Salinas under an 1857 law providing for joint ownership of marital property, which gives the husband the right to administer joint property, including the wife's, something she -- like most Chilean women -- did not know when she got married. Although other financial arrangements for married couples are permitted by law, this is the "default" system which applies unless the marriage partners request one of the two existing alternatives: separate property ownership, or participation in community property. Under the community property system, introduced in 1994, each spouse has separate control of the assets he or she brought to the marriage, but if there is a divorce, each party is entitled to half the community property built up during the marriage. Statistics indicate that 44.8 percent of Chilean women are married, and the joint property system applies to 64.8 percent of these marriages. However, in recent years joint property has been losing ground to separate property ownership, which applied to 22.9 percent of marriages in 1995 and 34.7 percent in 2005. Arce discovered too late, after having lived apart from her husband for 10 years, that the joint property system subordinates a woman to her husband's decisions. When her father died in April 1993, and her mother also died in June 1994, she and her brothers and sisters inherited real estate which they have not yet been able to sell, because Arce requires her husband's permission, and she no longer knows where he is. Arce could apply for permission for the sale in the courts, a long and tedious process which could take several years. Instead, she decided to take action to end this legal discrimination once and for all. In 2001, the non-governmental Corporación La Morada, now the Corporación Humanas, and the Centre for Justice and International Law (CEJIL) filed a complaint against the Chilean state on her behalf to the Washington-based IACHR. The complaint was for violation of the rights and guarantees established in six articles of the American Convention on Human Rights, known as the Pact of San José, and another six articles of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), both of which were ratified by Chile. The IACHR declared the case admissible on Oct. 10, 2003, and two years later on Oct. 18, 2005, initiated procedures for arranging a friendly settlement. On Mar. 5 a seven-point agreement was formally accepted. One of the points of the settlement establishes that Chile's Executive branch must classify as "urgent" a draft law that has been before Congress since 1995, which modifies the Civil Code and other laws on joint property and community property, so that husbands and wives have the same rights and obligations. Although the National Service for Women (SERNAM) has renewed three times the "urgent" classification -- which confers a time limit of 30 days for its discussion -- the draft law has not yet been approved. On seeking an explanation, IPS was only given contradictory replies. The draft law was presented by eight deputies of the governing coalition and honed by the Executive branch. It proposed eliminating the joint property system as discriminatory against women, and replacing it as a general rule by an improved version of the present community property regime. The main difference between the community property system in the new draft law and the system introduced in 1994 is that upon dissolving the marriage a "community property" is created, which must be divided equally between husband and wife in order to protect the weaker spouse. But in deliberations in the Chamber of Deputies, the discriminatory joint property system was reintroduced as an optional regime, with some changes. The amended draft law was approved by the relevant Senate Commission and was ready to be voted on by the full Senate. However, the president of the Commission, governing coalition Senator José Antonio Gómez, delayed the vote and asked for a second report, a decision that Corporación Humanas lawyer Helena Olea, who represents Sonia Arce, finds "inexplicable." Marco Rendón, head of the legal reform department of SERNAM, told IPS that they are unaware of the reason why the president of the Commission delayed the vote, given that this step is crucial for the approval of the draft law. Senator Gómez informed IPS through his press spokesman that he would not answer questions from this news agency. Olea said the Executive branch was partly to blame. "I think the government is weak-willed or is lacking in capability. While lobbying members of Congress, it isn't telling them that the state has committed itself to passing this law, nor that if this isn't settled it may end in a case before the Inter-American Court of Human Rights," she said. Isn't it paradoxical that this should be happening in the Michelle Bachelet administration, when she has taken up the cause of gender equality? "There's a distance between the president's wishes, which I do not doubt, and the actions taken by members of the government. We have a problem there," Olea said. SERNAM Minister Laura Albornoz told IPS that she had made an all-out effort to get the draft law approved, but she had come across two obstacles: the difficulty of getting family issues debated by the Senate Constitution Commission, and resistance from some opposition rightwing senators. Some members of Congress "want to take another look at how the property ownership system might affect families," said Albornoz, who has asked the Senate to create a special commission to deal exclusively with draft laws related to women and families. At the moment there is no visible progress on the draft law or on creating the new commission. Olea also told IPS in late June that the Bachelet administration had failed to comply with two other points of the agreement reached with the IACHR, to publish a report of the friendly agreement in the Official Gazette, and to post the entire text of the agreement on the websites of SERNAM and the Foreign Ministry for a period of three months. The human rights section of the Foreign Ministry told IPS through its press department that "the government is waiting for official confirmation of the agreement by the IACHR, which could happen in September or October of this year." But the IACHR procedure in these cases states that friendly agreements must be fulfilled by the parties from the moment they are signed. Official confirmation follows progress in fulfilling the agreement. If no progress is made, the IACHR proceeds with the case, which may result in a suit against the Chilean state being presented to the Inter-American Court of Human Rights, based in Costa Rica. In open contradiction with the position taken by the Foreign Ministry, while IPS continued to investigate the matter, on Jul. 6 SERNAM decided to upload the text of the friendly agreement on to its website. "I understood this to be an obligation, and so it was done," Rendón told IPS. He would not confirm or deny whether the investigations carried out by this news agency had motivated SERNAM's action. The friendly agreement also stipulates that within three months of the proclamation of the law, the state must distribute to the public, for an indefinite period, leaflets with information about the different property systems within marriage, and implement a training programme for all Civil Registry officials. Arce waived her right to reparations in cash, in return for a special invitation to the ceremony of proclamation of the law at which her case must be specifically mentioned as "emblematic" in the struggle against gender discrimination. Both parties to the agreement also petitioned the IACHR to carry out a legal study on the compatibility or otherwise of practices involving economic discrimination against women with the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.