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January 20, 2019

Why Matrimonial Property Bill will hurt marriage

Couples show their wedding rings. Photo Norbert Allan
Couples show their wedding rings. Photo Norbert Allan

The matrimonial property challenges have haunted the marriage institution since the 1800s. There are many laws all over the world around this issue. However, there has been very little discussion towards encouraging parties to remain within the marriage. The divorce rate in Kenya is on the rise going per the divorce cases that are being filed in our courts.

It is unfortunate that the focus seems to be more on the notorious issues of who brought what into the marriage, prenuptials, who walks out of the marriage with what etc.

It is no wonder the recent passing by parliament of the Matrimonial Property Bill has elicited mixed reactions amongst the citizenry irrespective of age, gender, race, political or other grounds.

Many have particularly expressed concern over the move that seeks to settle the question around the mode of distribution of matrimonial property on the basis of contribution by the spouses. It leaves this question to the court to determine should the parties to a marriage fail to agree.

In a positive development, the bill defines contribution to be both financial and non-financial. Unlike the unclear bumpy past, the bill defines non-financial contribution as to involve domestic work and management of the matrimonial home; child care; companionship; management of family business or property; and farm work.

Since time immemorial, women have played second fiddle to men. They have been marginalised by a patriarchal society and have hence not had the same opportunities to empower themselves economically as their male counterparts. The place of the woman has always been confined to the kitchen. Even with the recent clamour for women empowerment, majority of women in the country remain economically disadvantaged.

The constitution brought in a couple of guarantees that were tailor-made or intended to promote gender equality and end all forms of discrimination and inequality against women.This was the spirit as enshrined under Articles 27 and 45 of the constitution. The dream to achieve social justice was on its way to being realised. Many gains have been seen in the recent past e.g. slots for special interest groups and women in parliament.

The Supreme Court pointed out that the rights were to be progressively realised in a resent advisory opinion with the Chief Justice dissenting.

Enacting a retrogressive law today will be contrary to the legitimate expectation of Kenyans in the circumstances. Why should we enact then amend a statute?

All family laws must conform to the dreams of Kenyans as contained in the preamble to the constitution which sets out a commitment to the family. We cannot achieve social justice if we abandon this noble commitment.

The Matrimonial Property Bill must conform to the national values and principles of governance as set out under Article 10 of the constitution if Kenyans are to accept it.

This is a golden opportunity that we have in our hands to cure all the shortcomings that are inherent in the matrimonial property issues.

If the bill becomes law then it will violate the letter and spirit of Article 45 (3) of the constitution which provides that parties in a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. In the same breath, Article 27(1) provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

International law also provides for equality of parties to a marriage. Article 16 (1) of the Universal Declaration of Human Rights to which Kenya is a signatory states as follows:-

“Married Women of full age without any limitation due to race, nationality or religion have the right to marry and to found a family. They are entitled to equal rights as to marriage during marriage and at its dissolution.”

Further, Article 7 (d) of the Protocol to the African Charter on Human and Peoples Rights states:-

“In cases of Separation, divorce or annulment of marriage, women and men shall have the right to an equitable sharing of the property deriving from the marriage.”

If enacted this law would be an indirect attempt at amending the constitution through a statute.

Article 2 (4) of the constitution provides that any law, including customary law, that is inconsistent with the constitution is void to the extent of the inconsistency, and any act or omission in contravention of the constitution is invalid. If the bill is enacted with the offending clauses then any person can petition the high court to have the law declared unconstitutional.

The high court has powers to quash unconstitutional laws under Article 165 (d) where the court is granted jurisdiction to hear any question respecting the interpretation of this constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this constitution;

(ii) the question whether anything said to be done under the authority of this constitution or of any law is inconsistent with, or in contravention of, this constitution.

Currently, we rely on section 17 of the Married Womens Property Act, which provides that “In any question as to between husband and wife as to the title to or possession of property, either party, may apply by summons or otherwise in a summary way to any judge of the High Court and the judge of the High Court may make such order with respect to the property in dispute, and as to the cost and consequent on the application as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit…..”

This is statute has since been repealed in the country it was enacted yet we are still using it here.

However much we need to have a matrimonial property law in place, it is prudent that we have a good law that will promote the principles of equality, and help bring consistency in courts decisions as regards the issues of distribution of matrimonial property.

Previously, the courts have issued a host of decisions on the issue of distribution of matrimonial property.

In the case of Kivuitu vs Kivuitu [1991] 2 KAR 241, the court held that the indirect contribution of the woman should be taken into account when dividing matrimonial property.

In a subsequent case, Echaria vs Echaria [2007] eKLR, the court stepped away from Kivuitu vs Kivuitu and held that indirect contributions did not suffice.

There is need for a law that will set the guidelines for division of matrimonial property.

In order to win Wanjiku's heart, this law must conform to the principles of equality and public participation and or input as set out in the constitution.

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