This archive report was first published on 26 June 2020.
Kenya's Supreme Court is set to review the country's division of matrimonial property law, a move that could bring much-needed clarity for women seeking to claim their share of assets acquired during marriage.
Over the past decade, Kenya has enacted laws aimed at ensuring equality between spouses in marriage and the equitable distribution of matrimonial property. However, married women continue to face numerous challenges in acquiring property in their own name or jointly with their spouse, and in accessing courts and traditional dispute resolution mechanisms after divorce.
A recent report by Human Rights Watch and the Federation of Women Lawyers Kenya highlights the hurdles women encounter when claiming property they jointly contributed to during marriage. The report details the inconsistent application of the law by courts in Kenya, with some decisions completely rejecting the notion that financial and non-financial contributions should have equal weight, while others have recognised and wrestled with valuing and assigning a percentage distribution.
Even when courts want to equitably split property, the process can be difficult due to questions surrounding how to prove contribution, how non-financial contributions are measured and valued, and how this value translates to a share of land and real property.
The 2013 Matrimonial Property Act states that a spouse must 'show' that they contributed to the property either financially or non-financially to claim a share. However, the Act does not define what 'show' means in the context of court evidence, leaving judges to interpret the law in their own way.
Some judges have strict requirements that make it hard for women whose principal contribution was taking care of children and relatives, cleaning and cooking for the household, among other duties.
Assessing the contribution should include basic criteria such as the duration of the relationship, the impact of childcare and household responsibilities on either spouse's education and earning capacity, current and likely future income of each spouse, spouse's capacity to support themselves, the spouses' health and age, and contributions made by each spouse to realise the other's career potential.
As the Supreme Court reviews the division of matrimonial property law, it is an opportunity to clarify any ambiguity in the law and provide guidance on how assets acquired during marriage should be divided.
Ultimately, many women never take their cases before a judge due to wrongful and harmful gender stereotypes that vilify women who opt out of marriages or who claim a stake in property acquired during the marriage.
However, a marriage ends, women face similar obstacles in accessing what they are legally entitled to. The Kenyan government should ensure equality during and at the end of marriage and provide for a common means of protecting women's property rights.
By Mitchelle A. Oyuga, women and governance programme officer at the Federation of Women Lawyers Kenya, and Juliana Nnoko-Mewanu, researcher at Human Rights Watch.
