Women and Property Equality
If you enter into a marriage planning to walk out with half of what your partner labored to acquire once the union is dissolved, think twice.
Over the past decade, Kenya has enacted laws to ensure equality of spouses in marriage and equitable distribution of matrimonial property. Women, however, still face challenges in acquiring property in their own name, or jointly with a spouse.
In the case of divorce, or death of their husband women face unimaginable institutional barriers in accessing judicial and traditional dispute resolution mechanism and face legal ambiguity that impedes their right to matrimonial property.
The Federation of Women Lawyers (FIDA) Kenya, an NGO that advocates for women’s rights, on the 14th of May petitioned the High Court, challenging the provisions of Section 7 of the Matrimonial Property Act, 2013.
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.
This section makes ownership of matrimonial property solely dependent on the specific contributions of each spouse toward acquisition. FIDA contended that section 7 contravenes Article 45 (3) of the Kenyan 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 ideally make it possible for either of the party to get into marriage and walk out of it in the event of a divorce with more than they deserve.
Some actually called these women who were seeking equality as gold-diggers.
The court ruled that if one partner invested nothing in marriage, they should not ask for a slice of what was invested by the other partner on the basis of love.
Despite this, the fact remains that 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.
A lack of commitment to women’s equality leaves women unable to provide for themselves and their children.
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 favors men.
Women, particularly those living in rural areas, have less secure land rights, own and control less property.
Women’s contributions in marriage are often indirect. Kenyan law recognizes that and defines “contribution” as both monetary and non-monetary. Non-monetary contributions include domestic work and management of the home, child care, and 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.
Aside from discriminatory customary practices, women experience multiple barriers in accessing justice through the courts to claim matrimonial property at dissolution of marriage. Major obstacles such as minimal awareness of rights, inadequate access to relevant information, costs of legal proceedings, and long distances to courts hinder women from claiming their right.
On top of this, women face delays related to overlaps or confusion over which court has jurisdiction to hear matrimonial property cases.
Other difficulties, including inadequate human resource capacity in alternative dispute resolution mechanisms, such as mediation mandated by the court, further negatively impact the ability of women to access justice in divorce proceedings.
The government of Kenya should harmonize laws governing matrimonial property and provide 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 unrecognized roles and contributions in families, and the need to promote equality in marriage.
The fact that the government upholds a law simply because they rule out that majority of women get into marriage to get rich is preposterous and the Kenyan courts should not fail women again by ignoring this injustice.
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