It is a major blow to the women in settlement of failed marriages after the court ruled yesterday that it will no longer be automatic to split matrimonial property by half.
Estranged spouses must now prove their worth during the union to qualify to share property and also be prepared to clear debts jointly incurred.
Though it may also negatively affect men in rare situations, marital relationship experts say it is the women who often have to fight for property, seeing as African tradition largely views the woman as the one who comes into the man’s territory.
The ruling by Justice John Mativo, though meant to strike an equal rights balance in marriage by allowing either spouse to end up with the share they contribute into the union, is still widely seen as tilted against women who are nearly always the ones to claim their share during dissolution of marriage.
Judge Mativo said the Matrimonial Properties Act provides for a just and equitable distribution of matrimonial property acquired before, during and at the dissolution of the union.
But, apparently, knowing how society sees such law as tilted against women, the judge assured married women that Section 7 of the Act is not discriminatory since both spouses are required to prove their personal contribution to the acquisition of matrimonial assets to qualify as beneficiaries.
“By providing that a party walks out with his or her settlement based on his or her contribution, the section entrenches the principle of equality in marriage,” he said.
He acknowledged that women felt disadvantaged because of the perceived failure by the judicial system to reward them for being homemakers after depriving themselves of opportunities to pursue careers and businesses.
However, he said, the law was clear on the evaluation and interests of warring parties.
The judge dismissed the petition lodged by Federation of Women Lawyers-Kenya (Fida) asserting that married women became automatic victims of the law because they could hardly prove ownership and control of family property once their marriages collapsed.
Further, Fida had asserted that women could not handle liabilities or expenses incurred during the subsistence of their marriages in equal measure with their estranged husbands.
“The interpretation preferred by Fida, in my view, is an open invitation to this court to open the door for a party to get into a marriage and walk out with more than they deserve. The law recognises equal worth and equal importance of the parties in marriage,” Justice Mativo reasoned in his 22-page judgment.
The judge said it was not difficult for a spouse to prove non-monetary contribution in the event the marriage hits the rocks since Section 2 of the Matrimonial Properties Act defines contribution in very clear terms.
“All that a party is required to do is to provide evidence of his or her non-monetary contribution in the marriage and leave it to the court hearing the dispute to determine the issue,” he said.
He rejected assertions by Fida that the contentious law was passed amid protest by Parliament because the original bill provided that ownership of matrimonial property was to be divided in equal shares upon divorce.
“It was subjected to a vote as required and it sailed through after the majority voted in its favour,” the judge said.
“I find that the impugned section does not contradict Section Six of the Married Properties Act which provides for liabilities incurred during marriage to be shared equally. The provision was meant to curb situations where one party to a marriage would be left to settle debts incurred during the subsistence of the marriage,” he added.
Pastor Barnabas Achoki, a marriage relationship counsellor, a columnist with the People Daily, said though Mativo’s ruling is meant to instil fairness, it tilts the balance against women who in African tradition are seen to walk into a man’s established space.
However, says Achoki, modern living has placed some wives higher than men in earnings, which could work in their favour, but it is a rare exception.
The relationships expert says it will be harder for women to prove contribution to marital wealth creation since most of them play passive roles like being housewives. “The law may sound fair in letter but its spirit is tilted against women,” said Achoki.