Judge says pregnancy counts in division of matrimonial property


A pregnant African woman [Courtesy]

A judge has said 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.

Justice Teresiah Matheka is of the view that courts should factor this as work.

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 and the family. 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 although it is unfair to only rely on seen income, 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.

She continued, “Raising children is a full-time job that families pay a person to do. Cooking and cleaning as well. Hence for a woman in employment who has to balance childbearing and rearing this contribution must be considered.”

Justice Matheka was also of the view that where parties have parted ways, and one is taking care of the minors, he or she should get a sizeable measure of the matrimonial property. The judge was determining a dispute between a couple code named MW and AN. After their marriage was dissolved in 2011, MW moved to court seeking to share a property in Nakuru.

According to MW, she contributed in buying the property and supported her family for eight years when AN was not in employment.

Justice Matheka heard that he was summarily dismissed from his work in 1997.

She testified that they had three children born in 1991, 1993 and 1997, adding that she struggled to pay fees and fend for the children because AN never got another job. 

MW also argued that she sold some plots she had in Kiamunyi and bought a house in Milimani.

The woman urged the court to order that the property be sold and the proceeds shared.

However, AN told the court that he bought the contested matrimonial property by himself. He said that he started constructing a house and they moved in 1997. The man said that he built the house for her and their family but she was the one who moved out.

AN testified that he was about to retire, adding that it would be unfair to reduce him to a vagabond. He stated that for three years he remitted money to her account through a standing order to refund the money she had spent.

The man denied claims that the money he sent to AN was for the upkeep of their children and insisted it was meant for a refund of the loans MW had taken.

The couple listed 13 issues for the court to determine.

Justice Matheka ordered that they should sell the property and split proceeds equally or in the alternative buy out the other party by paying half of the value of the property.