Historically, marriage had the specific purpose of perpetuating one’s lineage, and in the process bestowing social status on men. In the traditional setting people practiced customary law which encouraged polygamy and generally discouraged the owning property by women.
After independence Kenya adopted laws from Britain. The law on matrimonial property at the time, the English Married Women’s Property Act of 1882, encouraged a woman’s submission to her husband. Any personal property acquired by the wife during the marriage went automatically to the husband and there was no consideration for the woman’s contribution.
As such the drawing of the Matrimonial Property Bill brought with it a sense of hope, that things would change for the better and both married parties would get their voices equally heard by the law. Despite this, there have been concerns that the recently enacted Matrimonial Property Act is unconstitutional as it imposes conditions to enjoyment of property rights especially it’s sections 7 and 8, that take away property rights during marriage and bases them on divorce.
It was on the 12th November 2013 when the Matrimonial Property Bill was passed into law, with key amendments that would’ve greatly favored the ability for stay-at-home men or women by guaranteeing an equal share of assets during divorce. It stated that where there was no prenuptial agreement, “ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce.” (Matrimonial Property Bill Sec 7)
However seeing how this would unjustly encourage gold diggers, and marriage-hopping brides and grooms, this provision was later amended to read that, upon divorce, spouses shall share property (not equally) on the basis of the contributions they make in its acquisition. (Matrimonial Property Act, Sec 7).
Previously, the term of ‘contribution’ was broad placing the burden of proof in favor of women. A woman was entitled to an equal share of property in divorce if she could prove that the property in question was acquired during the marriage and that she “contributed directly or indirectly” to its attainment. Today, ‘contribution’ amounts to monetary and non-monetary contribution and includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work.
For this reason, Justice Patrick Kiage, while delivering a judgment in an appeal where a separated couple was fighting over property, said that once the marriage is over, each marriage partner should walk away with the share of what they contributed. The judge, claimed in his ruling that it was strange to think that partners can acquire 50 percent of each other’s wealth without analyzing individual contributions.
Although the Constitution recognizes equality between a man and a woman in marriage, it cannot guarantee 50-50 sharing of matrimonial property. Kiage said the Constitution was not a loophole for lazy partners to harvest benefits from their marriages without lifting a finger. “…It cannot be an avenue to early riches by men who would rather reap from rich women or women who see in monied men an adieu to poverty,” said the judge.
Furthermore the definition of ‘Matrimonial Property’ has changed overtime; ensuring one spouse can’t exploit the other. Initially, the term included any movable or immovable property owned by both spouses or either spouse and is acquired during the time of the marriage (Matrimonial Property Bill, Sec 6). It was then amended to only consist of movable and immovable property jointly owned by both spouses. In the case where one spouse owns immovable property in his/her own name as their personal property, then that concerned property would be out of reach of divorce settlements.
Concurrently, where matrimonial property is acquired during marriage in both the spouses’ names, there shall be a presumption that their beneficial interests in the matrimonial property are equal, (Matrimonial Property Act, Sec 14). In this instance, each spouse will receive an equal share of property. If one spouse wishes to be awarded sole possession or a majority of the assets, they would have to establish a reason as to why the equal division standard shouldn’t be applied.
In the case of a polygamous marriage, matrimonial property acquired by the man and the first wife shall be shared equally by the man and the first wife only. If the property was acquired before the man married another wife. Matrimonial property acquired after the other wives are married shall be regarded as owned by the man and wives taking into account any contribution made by the man and each of the wives.
If you’d rather not get a headache dealing with the allocation of property, you may want to consider getting into a prenuptial agreement before marriage to determine your property rights.
Despite everything, upon divorce, there is one thing for sure that will be allocated equally between an ex-husband and wife, liabilities. The legislation provides that parties to a marriage will equally share debts incurred during their marriage (Matrimonial Property Act, Sec 10). It really sets in the phrase ‘for better or for worse’.