WHAT EQUALITY?

Why widows, divorced women lose out on property

Fida, Human Rights Watch blame social, traditional practices on marriage and inheritance.

In Summary

• The report by Human Rights Watch and Fida-Kenya says tradition and stereotypes still overrule equality laws. 

• Legal reforms have recognised the equality of the sexes but widows and divorced women still face systemic discrimination and injustice, the report showed. 

Report shows that traditions reign over law in divorce in the country /FILE
Report shows that traditions reign over law in divorce in the country /FILE

Married women are still likely to lose land and property should their partners die or divorce them, a new report shows.

The report by Human Rights Watch and Fida-Kenya says tradition and stereotypes still overrule equality laws. 

Legal reforms have recognised the equality of the sexes but widows and divorced women still face systemic discrimination and injustice, the report showed. 

The two lobbies interviewed more than 60 people including women who are separated, divorced, or widowed.

They also analysed data from 56 divorce and property division cases finalised between 2014 and 2019 in Kakamega and Kilifi counties.

 

The lobbies found that cultural considerations hold huge sway on how marriages are managed and dissolved and how widows are treated. 

Moreover, the report found that the courts have not defined how to prove contribution and share of property based on them.

 “Although the law is clear that monetary and non-monetary contributions should be considered in sharing property at the end of a marriage, neither the law nor the High Court or Judiciary clarify what proof of contribution is required, and how such contributions should influence how property is shared,” the report indicates.

This ambiguity has disadvantaged some women because of the assumption that men work and contribute more monetarily.

In particular, women’s non-monetary home-care contribution is not factored in the marriage, disadvantaging them.

For example, it said, judges presiding over divorce proceedings have in some cases asked spouses to produce receipts from years of marriage, discriminating against some women whose principal contribution was non-monetary. 

Some judges do not recognise women’s unpaid care and domestic work, while others do, it added.

Under the Succession Act, the surviving spouse becomes the owner of the deceased’s personal and household items, but only retains a “life interest” in other property such as land and houses during their lifetime.

The surviving spouse cannot dispose of immovable property without court permission and a widow loses her right to use this property if she remarries.

The Act also exempts agricultural land, crops, and livestock in certain districts if there is no will.

Succession in these cases is under customary laws, which largely discriminate against women and girls.

In most instances, the laws are antiquated, disjointed and seamless, it said, adding that “even if laws are clear, women face difficulties in accessing justice through the courts.”

The lobbies blame social and traditional practices on marriage and inheritance as making it “more difficult for some women to access matrimonial property in Kenya.

Such practices include dowry, customs concerning children after divorce, and those that discriminate against women owning land and property.

Women’s rights to land and other productive resources, such as access to credit and agricultural inputs, are interrelated and often dependent on their ownership of matrimonial property, the report said.

(edited by o. owino)