By LILLIAN ALUANGA-DELVAUX
Fourty two-year-old *Elsie has been embroiled in a bitter dispute over sharing of matrimonial property after the dissolution of her six-year marriage. Elsie, a mother of two, had been working in the private sector where she earned Sh300,000. Her husband *Jacob, a civil servant, earned nearly five times less.
Five years into the marriage, Jacob landed a job in an European capital that came with a monthly salary of Sh1 million. Elsie had only two options; to stay in Nairobi and keep her plum job, or accompany her husband and give up the hefty perks. She chose the latter. Within a year of taking up the new job, Jacob bought a home in Nairobi worth Sh7 million. Five months later, the marriage hit the rocks, sparking off a protracted legal battle over sharing of property, amid questions of who had made the greatest contribution to the marriage.
It is such questions that the Matrimonial Property Bill, recently passed in Parliament, seeks to address, as debate rages on the importance of amending provisions that had sought to have spouses share property equally upon dissolution of a marriage. Eighty-seven MPs voted to have the sharing of matrimonial property pegged to each spouse’s contribution, while 28 backed the sharing of property on a 50-50 basis.
Nairobi Lawyer Mugo Kamau is among those that welcome the Bill. He argues that provisions on sharing matrimonial assets should not be viewed as being unfair to women, because they target both spouses.
“We have women who have acquired wealth while married, and husbands who do little to support them. Sharing property on an equal basis in such a case would mean such men would get what they have not worked for. This provision also protects women in polygamous unions from co-wives that come into the union at a later stage and demand equal rights to those of the first wife when sharing property,” he says.
Kamau says it is important to note that contribution in a marriage is not only monetary, and there are options for women to ‘insulate’ themselves to avoid cases where they find themselves holding the short end of the stick. “There is provision in law for joint ownership, but most women are afraid of taking this route because they don’t want to look as though they don’t trust their spouses,” he says.
Wives, he says, should also take initiative to find out what family properties their husbands are acquiring. “It is not only in divorce that issues of how to share matrimonial property come up. Death of a spouse can occur. In such a scenario, if the property was jointly owned, then it reverts to the surviving spouse,” he says.
The Matrimonial Property Bill acknowledges that contribution in a marriage could either be monetary or non-monetary, and includes domestic work and management of the matrimonial home, childcare, companionship, management of family business or property, and farm work.
But it is these non-monetary contributors that those faulting aspects of the Bill argue are difficult to quantify. During debate in Parliament women MPs argued that domestic labour, companionship, taking care of children, farm work and house chores were all part of non-monetary contributions that ought to be quantified. They maintained the fact that many women stay at home to cook, clean and take care of the children, formed part of the non monetary contribution to a marriage that entitled them to an equal share of matrimonial property.
How to quantify such contributions also formed the basis of a meeting in Naivasha to discuss ways in which women can be compensated for providing ‘unpaid care’, which is a contributor to the country’s economic growth. Women’s Political Alliance chair Daisy Amdany, a participant at the forum, says ‘unpaid care’ is the intangible labour that does not comprise exchanges that usually occur in a market place. Such kind of labour is usually viewed as ‘a woman’s role’ and includes taking care of children, fetching water and firewood, cooking, cleaning, nursing sick family members and tending to the farm. “The market defines these activities as work, and in cases where men would carry them out they would be paid for it,” she says.
FIDA-Kenya’s deputy executive director Teresa Omondi appreciates the fact that the country now has legislation that addresses matrimonial property, but faults changes to the sharing of matrimonial property in the case of divorce. “The Bill contravenes Article 45 of the Constitution that provides that ‘parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at dissolution of the marriage,” she says.
Family lawyer Judy Thongori says there are positive aspects of the Bill that should not be overlooked. Women, she says, are still protected by Section 93 of the Land Registration Act, which takes into account contribution of a spouse, through labour, to productivity and improvement of land. This deems one to have acquired an interest in that land, and their rights thus being recognised as if they, too, were registered owners. “It is unfortunate that MPs removed the equality provision but what’s left of the Bill still leaves us in a better position,” she says.
The country has been using the outdated Married Women Property Act of 1882. According to Ms Thongori, although the Bill provides different categories that constitute a spouse’s contribution to marriage, the challenge, for many, will be proving this in court. She cites Section 12 that shields spouses from being evicted from their matrimonial homes except where a court order is issued to the contrary. Section 14 also provides that where during the subsistence of a marriage property is acquired in the name of one spouse there shall be a rebuttable presumption that the property is held in trust for the other spouse.
Suba MP John Mbadi is, however, uncomfortable with provisions that property to be shared must be owned and acquired by both parties.
The Bill proposes categorisation of matrimonial property as matrimonial homes, household goods and effects in those homes and any other immovable or movable property jointly owned by both spouses.