Last week, the Supreme Court delivered two landmark judgments which will have fundamental implications on the institution of marriage and issues related thereto.
This week we discuss the first case, Ogentoto V Ogentoto. In this case, the Supreme Court finally settled the law on the question of the rights of spouses to matrimonial property upon divorce.
In the last few decades, the courts have seesawed on this issue. At times, the courts have ruled that property acquired during a marriage but registered in the name of only one party, would be shared based solely on evidence of pecuniary contribution.
This prejudiced spouses who may have contributed materially but had no evidence to prove such contribution and those who had contributed in non-pecuniary ways.
Fortunately, in most cases, the courts had recognised that contribution could be through non-pecuniary ways, including looking after the family as the husband earned the money to invest in property for the family. The issue took a different turn when in 2010, the Constitution introduced Article 45(3) which, many considered vague. It provided that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”.
During the debate on the Marriage Act in 2014, there were vibrant discussions on the meaning of this Article. In the absence of agreement, the Act restated the same words in Section 3(1) of the Marriage Act.
It was then left to the courts to determine what the Constitution intended through that provision. One side of the argument, which in the Ogentoto case was well articulated by the Federation of Women Lawyers, called for a contextual approach to interpretation of the Article.
In their view, at the end of the marriage, parties should be entitled to share property acquired during the marriage equally. The contending argument was that what the parties were entitled to at the end of the marriage was a right to what they had acquired or contributed in the acquisition of, during the marriage.
The Supreme Court leaned on the side of the second argument. In the court’s view, entering a marriage did not take away from either spouse the right or ability to acquire property separately. The “equal rights” provision was therefore intended to protect any person from being deprived of a right they had acquired during the marriage.
Consequently, to claim a share, one needed to prove that they had acquired a right to the property through evidence of contribution. To its credit, the Supreme Court recognised that contribution did not have to be pecuniary, it could be by way of other non-pecuniary involvement in the marriage.
Indeed, in the Ogentoto case, the court awarded the wife a 50 per cent share in the property on the basis inter alia of evidence that she had contributed materially and in non-material ways for the benefit of the marriage. For many who had assumed the Constitution had laid the “prove of contribution” ghost to rest, the Ogentoto case came as a shock. Its implication on marriages is quite significant.
It means spouses who are unable to show that they contributed in non-material ways will need to produce cogent evidence of financial contribution to family assets.
It will also mean the safest way to protect one’s rights to property during the marriage is joint registration of property on acquisition. This naturally prejudices many women who do not have the power to bargain for such inclusion.
While one may agree with the court’s textual approach in interpretating this Article, one feels that not enough attention was given to our contextual realities, particularly the patriarchal nature of our society and the power differential across genders.
Fortunately, the Supreme Court is allowed to reconsider its decision. One hopes that one of these days it will rethink its approach and focus not so much on the “joyriders” and “slay queens” in marriages, but on the myriad women who toil and moil for the success of the family only to be sent empty handed because they could not prove contribution.
Next week, we look at the second decision which many men believe has converted them to instant singles!
The writer is an advocate of the High Court of Kenya