Frustrated housewife [Courtesy]

Although all eyes are on the highest court in the land to give direction on how matrimonial property should be split in case of a divorce, lower courts have set precedents.

The Court of Appeal in December last year set the benchmark against which career women, who neither stay home to look after children nor do house chores, should be judged.

Justices Mohamed Warsame, Hannah Okwengu and Sankale ole Kantai in a case between Edward Ng’ang’a and Mary Njoki held that marriage per se is not a ground for sharing property acquired during marriage equally.

Njoki wanted their wealth split 50:50 and the High Court agreed with her. She argued that as a wife, she had contributed to the wealth as much as Ng’ang’a had.

Ng'ang'a on the other hand argued that they had no children and that Njoki had acquired her own properties which he was not interested in. He was of the view that the court should allow them to part ways without dividing what each has. 

On appeal, that court overturned Justice William Musyoka’s verdict in favour of the man.

“It is clear beyond doubt that the respondent cannot assert that she was taking care of children and other family issues. Admittedly both parties were top professionals who pursued their personal and professional interest separately,” Court of Appeal ruled while settling that Njoki deserved 10 per cent of the wealth.

In the High Court, Justice George Odunga gave a landmark verdict, a first for the country that post-nuptial agreements can be recognised.

Although the judge noted that the matrimonial property Act is silent on post-nuptial deals, he was of the view that they are binding contracts which should be accepted by courts.

“While the Act does not expressly recognise post-nuptial agreements, it is my view that this does not mean that such agreements are not enforceable. Being contractual in nature, the general law of contract applies and they are enforceable just like any other contract. Therefore, they are subject to the court’s scrutiny if allegations of fraud, coercion or is manifestly unjust are pleaded by a party to the agreement,” he ruled.

At the heart of the case before Odunga was a deal between a man code named DNK and his wife KM. After their marriage ended, he moved to court claiming that the agreement they had signed to share their wealth was out of coercion.

DNK married KM on August 18, 1995 but the marriage was dissolved by court on March 5, 2019.

Although DNK admitted signing the document, he argued he was not in his right state of mind adding that allowing hi ex-wife to have 12 acres and he remains with three was unfair. According to him, the property was his inheritance.

KM on the other hand argued that he was not forced or nagged to sign the deal.

Meanwhile, Justice Teresiah Matheka added to the list of contribution by finding that judicial officers should factor in the nine months a woman carries a baby in her womb while presiding over disputes on distribution of matrimonial property.

According to the judge, it is unfair to find housewives contributed less or nothing. 

Justice Matheka pointed out that society today has been able to monetise carrying a baby through a surrogate, adding that taking care of children is today a full-time job.

“It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children. That spouse will be heard to say that the other one was not employed so they contributed nothing.”

“That can no longer be a tenable argument as it is a fact that stay-at-home parents and in particular women because of our cultural connotations do much more work (housewives) due to the nature of the job,” she said.

Justice Matheka observed that the mindset that one has to contribute money to marriage to find value is so entrenched in the society that housewives are the ones telling courts ‘sifanyi kazi’ (I do not work), simply because they do not leave home to go earn money elsewhere.

In 2017, Justice Patrick Kiage in a case filed by one Zipporah Wangui against her estranged husband Peter Njuguna, 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.

Wangui and Njoroge were embroiled in a 12-year court battle as the woman sought five properties - one in Nyahururu, three in Bahati-Kabatini and another one in Donholm.

Kiage ruled that sharing matrimonial property after divorce did not have a fixed formula in law and must be on the basis of fairness and conscience and not the 50:50 mantra.

“It is not a matter of mathematics merely, as in the splitting of an orange in two for, as biblical Solomon found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts,” he said.

Kiage said the Constitution was not a safe haven for spouses who refused to put effort into their marriages.