On May 14, the Kenyan justice system failed women miserably.
The Federation of Women Lawyers (Fida), Kenya, petitioned the High Court, challenging the provisions of Section 7 of the Matrimonial Property Act, 2013. The section makes ownership of matrimonial property dependent on the contributions of each spouse toward its acquisition. Fida contended that Section 7 contravenes Article 45(3) of the Constitution, which provides for equality during marriage and on divorce.
The High Court dismissed the petition, stating that sharing matrimonial property equally between spouses would “open the door for a party to get into marriage and walk out of it in the event of divorce with more than they deserve.” Some media reporting on this issue painted women seeking equality as gold-diggers.
But ensuring a fair division of matrimonial property is a key part of protecting women’s rights within the context of marriage and divorce. It also provides an important lens into how women’s economic contributions, including their unpaid care of children and other family members, are valued in society.
The Kenya government has human rights obligations to ensure women’s equal rights in marriage and during divorce. This includes taking steps to ensure equality in ownership, control, and distribution of matrimonial property. Ownership of matrimonial property is directly related to women’s rights to land and other productive resources.
In fact, a lack of commitment to women’s equality leaves women unable to provide for themselves and their children. It means that they end up trapped in abusive relationships, unable to control their sexual and reproductive decisions, and with increased exposure to the risk of getting HIV.
Kenya has taken important steps in the last decade to ensure women’s equality in marriage and to secure their property rights within marriage, including through adoption of the 2010 Constitution and the 2013 Matrimonial Property Act. However, evidence shows that there are still significant gender disparities and that the distribution and control of productive resources such as land, property or livestock still favours men. Women, particularly those living in rural areas, have less secure land rights and own and control less property.
The Matrimonial Property Act defines matrimonial property as the common home(s), household effects, and any other immovable and movable property jointly owned and acquired during the marriage. This excludes property owned by either spouse before marriage – unless it is used during marriage as the matrimonial home.
Women’s contributions in marriage are often indirect. Kenyan law recognises that and defines “contribution” as both monetary and non-monetary. Non-monetary contributions include domestic work and management of the home, child care, companionship, management of the family business or property, and farm work.
The law also allows for parties to enter into a prenuptial agreement to determine their property rights. However, many women are not aware of their matrimonial property rights, let alone how to conclude complex legal agreements. Furthermore, marriage in the traditional Kenyan context - including practices such as child and forced marriage and dowry or bride price payment - make negotiating a prenuptial agreement almost impossible for some women.
Kenyan courts have issued mixed judgements on the question of equality in divorce, with the Court of Appeal interpreting Article 45(3) of the Constitution to mean equal ownership of marital property, while the High Court in previous cases has ruled in favour of distribution on the basis of actual contribution.
The Kenyan government should harmonise its laws governing matrimonial property. It should provide a standard and fair system of division of property that would provide security for all parties during marriage and at its dissolution, including by considering the future needs of the parties. The government should develop guidelines for courts on how non-monetary contributions should be assessed and valued, taking into account women’s many unrecognised roles and contributions in families, and the need to promote equality in marriage.
Upholding a law that may be discriminatory on the presumption that the majority of people get into marriage to get rich is preposterous and the Kenyan courts should not fail women again by ignoring this injustice.
By Agnes Odhiambo and Juliana Nnoko-Mewanu, women’s rights researchers at Human Rights Watch.