NAIROBI, Kenya – Divorced women in Kenya will continue to lose out on matrimonial assets after the High Court dismissed a petition that called for a couple’s property to be split evenly if their marriage ends.
When the Federation of Women Lawyers (FIDA-Kenya) filed the petition in September 2016, they wanted to repeal section seven of the Matrimonial Property Act, which states that, upon divorce, a couple’s property will be divided according to each spouse’s contribution to the property during the marriage. They say the law contradicts an article of the Kenyan Constitution which states: “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.”
But the High Court argued that the 50/50 split FIDA proposed would create the potential for fraud, opening the door for people to enter into short-term marriages just to get their hands on half of their spouse’s property. So on May 14, the court ruled against the petition. FIDA says it will appeal the decision.
“This has been a great fear for FIDA-Kenya that the country is being plunged back to the olden days when women were still treated unfairly as regards matrimonial property,” FIDA-Kenya chairwoman Josephine Mong’are said in a statement on the day.
“The Matrimonial Property Act, as it is, has its limitations and, every year, millions of women in Kenya still find themselves fighting to hold on to their property after a divorce or the death of their husbands. Women’s gains made in the current constitution must be protected.”
Section seven was added as an amendment to the Matrimonial Property Act when it was passed in 2013. Originally, the legislation guaranteed women an equal share of assets in a divorce. The amended version changed the share of assets to reflect contributions, but also shifted the burden of proof to the man: Instead of the woman having to prove that she is due an even share of the couple’s assets, as was the law before the Matrimonial Property Act came into effect, the man now has to prove that he has the right to more than half the assets.
“Most women who are caught up in [land disputes] do not have the capacity even to file suit. Most of them just give up, relieved that their marriage is over, and want only to move on.”
But women’s rights advocates say the current system severely disadvantages Kenyan women, who already lag far behind men in property ownership. In most property dispute cases, men have more resources to put behind claims that they are owed all or the majority of assets. Women often don’t have the time or money to fight for their property rights in court, or simply don’t know how.
“Most women who are caught up in [property disputes] do not have the capacity even to file suit,” Mong’are told News Deeply. “Most of them just give up, relieved that their marriage is over, and want only to move on.”
Measuring a Woman’s Contribution
In Kenya, where more than 60 percent of the population wholly or partially relies on agriculture for their livelihood, women comprise up to 80 percent of the workforce but only hold 1 percent of registered land in their names and around 6 percent jointly with a spouse.
When making his ruling, Justice John Mativo noted the Matrimonial Property Act makes allowances for nonmonetary contributions to the household, so legally the division of a couple’s land and property will take into account the woman’s unpaid work such as upkeep of the home, bearing and raising children, and farm labor.
But supporters of FIDA’s petition says it’s often difficult for women to quantify those contributions and most are never properly compensated for the unpaid work they do over the course of their marriages.
“Especially in Kenyan culture, a woman is always involved in unpaid care work and labor at home when the man is working and buying property,” Evans Lagat, a lawyer at Kenya’s High Court, says. “And in the case of a divorce or dispute, the woman is taken to task to prove how much she worked and contributed so that the court can award them in financial terms or as otherwise determined.”
No Way to Fight Back
When Jane got married 11 years ago, she was a banker in Nairobi. When she got pregnant, she resigned her job to take care of the baby. She stayed home with their second child, too, depending fully on her husband to support the family as she cared for the children and their home.
While Jane (not her real name) was carrying their third child, her husband became abusive. “He would come home drunk and would beat me up for no reason at all. On many occasions, he came in with a woman and would sleep in our bedroom while I spent the night in the kids’ bedroom,” she says.
“I can’t take him back to court as he has countless times cautioned me that he is well connected and I wouldn’t want to mess with him.”
She moved out and her husband started legal proceedings for a divorce. “I signed the paper immediately,” she says. Then her sister-in-law told her she had the right to demand her share of their matrimonial property. In 2015, Jane went to court, hoping to gain at least one of the several homes her husband had bought while they were married. Instead, the court granted her only Ksh 50,000 ($420) – she had no property and no land, nowhere for her and her children to live.
Jane moved into her sister’s house and began to work selling fish. She eventually moved to a rented home, a small house made of corrugated iron sheets in the Mathare slums. During the divorce, her husband agreed to help support their children, but Jane says he stopped making alimony payments.
“I can’t take him back to court as he has countless times cautioned me that he is well connected and I wouldn’t want to mess with him,” she says.
After more than a decade of marriage, Jane has been left with no home of her own and struggling to earn enough to support her family. And without a change in the law, she feels she has no way to fight back.
“As the law is put in Kenya, it is hard for women like me to say what they did during marriage to prove their contribution,” she says. “I wish that one day our cry is heard and equal treatment is assured.”