In January 27, 2023, the Supreme Court ruled that in case of divorce, property should be fairly split based on each individual's contribution. The landmark ruling came after one of the parties in a divorce case moved to the Supreme Court after the Court of Appeal ordered the couple to share their matrimonial property, a family home and rental units, on a 50:50 basis. The couple had been married for 18 years and had been engaged in a 13-year battle for this property.
Supreme Court settles divorce property rights
Further, the five-judge bench ruling noted that each party must strive to prove their contribution to matrimonial property to assist courts in making proper judgments. This ruling shattered the 50:50 equality illusion that has existed for a long time when divorce takes place. Matrimonial property cases have been making more headlines lately, as courts shift from equality to what would be perceived as equity.
Marriage, divorce and matrimonial issues are undoubtedly difficult to resolve owning to their emotive nature. Just recently, the Marriage (Amendment) Bill 2023 was introduced in parliament for debate. The bill seeks to make it simpler and cost-effective for couples to divorce through mutual consent. While the bill does not necessarily cover matrimonial property (yet), it addresses some of the pertinent issues involved in divorce such as the cost and the duration it takes to resolve cases in court. And while it might make divorce easier, does it really address the key issues when it comes to marriage in the Kenyan context? Also, how will the division of matrimonial property be handled in a case where parties divorce amicably through mutual consent? As the law evolves, the gap between legal theory and reality widens.
DN2 Property sought to establish the extent of this gap between law and reality, when it comes to matrimonial property, with a special focus on rural communities. We share insights from a focused group discussion involving women from Machakos County and expert contributions from two women running civil society organisations that cater to grassroots women.
The focused group discussion organised by Haki Nawiri Africa was held with about 50 women in Kathiani, Machakos County. The group comprised married women, elderly and middle-aged women. The discussion focused on issues to do with land, marriage, separation and division of matrimonial property. It was established that land is one of the most important assets in the rural set-up and covers where family homes are built as well as farmland. Most of the women said that land within many households is family-owned, while a few said that they had bought land in their name.
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When it comes to joint ownership between the women and their husbands, that was not an option, and several issues were attributed to this. First, men are still recognised as the heads of households and are trusted as the custodians of important family assets. Second, the traditional land-buying process (which is still in practice) leaves little room for women.
It involves the buyer and the seller bringing along elders from each side. These elders are normally men, and they act as witnesses to the transaction. The process is mostly a men's affair, though some of the women say that they have been involved to some extent, just that having both names on the title is never a discussion. The women are however comfortable with title deeds being in men's names and custody. According to data by the Kenya Land Alliance, only 5 per cent of titles in Kenya are co-owned by men and women.
On separation, the group unanimously agreed that there are increasing cases of divorce and separation within the community. When asked why this was the case, a myriad of reasons was shared, including, the fact that people do not take marriage seriously nowadays. In addition, they observed that marriages are now an "on and off" affair whereby people marry, separate and get back together again.
The biggest gap between the law and reality based on this discussion is that when couples separate, they do so informally. Only a handful will go to court. In the rural set-up, it is mostly women who walk away. When asked whether they've seen anyone walk away with a portion of matrimonial property, they unanimously said "no", but said a few of the "clever" ones carry what they can silently, but the immovable properties such as land and houses are left behind. This is a harsh reality about separations in Kenya, they tend to be informal with little room for courts' intervention.
When asked what the law says about splitting matrimonial property after divorce, most of the women had significant knowledge. Some said the division should be 50:50 while others said the division method should be a combination of one's contribution and compensation of everyone's years in the marriage. However, questions arose on which types of marriages are eligible for division of matrimonial property.
Though the Marriage Bill 2014 defines the five types of marriages recognised in Kenya clearly, this information has not trickled down to the average Kenyan. Customary law is still the most common type of marriage, but men and women who find themselves in other types of arrangements such as polygamy or informal ‘come-we-stay’ unions lack clear direction on how to protect themselves legally. Hear-say “laws” such as living with someone for six months amounting to marriage or changing one’s name in the ID being proof of marriage still permeate the society.
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The ability to prove indirect contribution was a major concern for the women who noted that some of the tasks undertaken in the early years of a marriage such as supervising construction projects and even gathering some of the materials (that are not bought) is difficult to prove. Besides, when these tasks are undertaken, no one is thinking about court proceedings and the need to preserve evidence.
Children and custody were also a major concern. The big question was who would cater for children's upkeep in case of divorce. In addition, questions were raised around the court's inability to compel parents to pay children's upkeep after separation. One parent can simply ignore court orders or go into hiding.
What really is matrimonial property?
Violet Shivutse, the Director of Shibuye Community Health Workers and the Vice Chair, Kenya Land Alliance, runs a women-led organisation that serves grassroots women. The organisation operates within Kakamega, Siaya and Homa Bay counties. Violet’s work and interaction with women has served as the perfect platform to understand and articulate issues facing rural women when it comes to matrimonial property.
In the rural context, Violet explains, matrimonial property covers assets such as the family house, cows, goats, furniture, farm harvests, shops in markets and sometimes water sources. When it comes to indirect contribution, there is a significant difference between how this manifests in a rural versus an urban set-up.
"Most women in rural communities do not have money from formal employment, they farm. As the husband buys materials to build a home the wife is feeding the labourers with food she harvested. They also contribute to other tasks like fetching water for the construction.
This is a direct contribution, but it is never counted as such. Supervision is also a form of contribution, and it could be considered as unpaid labour. Then there are ideas bounced around between husband and wife on hiring, planning and house designs or where to invest, which are also a form of indirect contribution," says Violet.
These kinds of contributions are difficult to prove and quantify. Additionally, despite the immense contribution, both direct and indirect, Violet notes that only a small percentage of women go through the court process, to claim their share of matrimonial property.
“In most divorce and separation cases, women just walk away because they are tired and humiliated. In some instances, the husband may bring in a second wife who drives the first one away. Some women go to the chiefs in search of solutions, but this rarely works as the local leaders tend to try and mend the marriages that are broken beyond repair. Divorce could also be initiated by family members who initiate a traditional separation”
On why the court system is not a favourable choice for divorcing couples Violet says there are several challenges the court system presents. First, most of the cases take long, plus there are rampant cases of corruption in courts. Additionally, courts are also built in central places within towns which are far from where the rural women live. Following-up on cases is not only time-consuming but also costly. The court proceedings are also very technical, and the rural population may not understand the legal jargon.
“Local leaders like chiefs are supposed to educate locals on their rights but sometimes these leaders are corrupt, or they perpetuate injustices. The government does not invest in educational material or public sensitization on legal issues. There are no flyers or written information within the ward admin offices of chief’s camps. As a civil society group, we conduct legal clinics, and this is one of the best sources of legal information. We get professionals to look at individual cases and give guidance. We also help women understand the court system, different types of courts, how to move from one to another and how to file cases. Women still need support on how to access lawyers or how to get pro-bono services. Unfortunately, the ones who cannot access legal clinics by civil society groups are disadvantaged”
As the law evolves and especially as the Marriage (amendment) Bill is discussed, Violet suggests that matrimonial property be looked into from all contexts.
Polygamy should also be part of the discussion when revising the law. “In a polygamous marriage there is always one woman who suffers especially when all family assets are on family land. According to a presentation, by Faith Alubbe, CEO, Kenya Land Alliance to the Council of Governors, polygamy is identified as one of the emerging issues that complicate matrimonial property. While the law spells out each of the parties’ property rights in a polygamous marriage, these kinds of unions tend to be complicated. As established above, land within the rural set-up is mostly family-owned.
Leonida Mudongo, founder of Haki Nawiri Africa.
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What then happens to a first wife who decides to walk away from a union where all the development (including the second wife or third wives’ houses) is done on family land? The other key emerging issues identified in the document include gifts to, or from spouses and the presumption that a gift (which could be land or a house) absolutely belongs to the gift receiver.
Lastly, Violet suggests that lawmaker should consider incorporating informal justice systems that suit the rural context. Chiefs, ward admins and paralegals can be sensitised and trained on how to handle marriage and divorce issues. However, the selection criteria should be very strict to prevent corruption.
Translate law to local languages
Leonida Mudongo, the founder of Haki Nawiri Africa, says knowledge on legal issues is relatively low among rural populations.
“I think access to information depends on whether one is part of a formal group or member of a local social group that discusses legal issues. Proximity to local shopping centres or county towns also plays a role. A person’s interactions also matter. The law governs our lives from birth to death and we are often told that ignorance is no defence.
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There are assumptions that everyone should familiarise themselves with the law, but when you interact with people from rural areas, there is a major knowledge gap. They might be aware of what the Constitution says in general, but they are not very conversant with specific laws. The technical nature of the law also compounds an already complex problem. The jargon needs to be unpacked, simplified and perhaps translated to local languages,” she says, and suggests several strategies to improve access to legal information.
Community-based public forums, such as chief’s barazas, for instance, can play a huge role in educating people about the law. They enable community members to ask questions.
Theatre and film are also great tools that can incorporate the youth in various communities. The law is very technical, but if communicated through theatre it becomes simpler. For instance, if you act out scenarios that people face on a day-to-day basis and provide solutions, it’s simpler to internalise compared to handing out books and journals. Lawyers and Law students should also be encouraged to go to communities and carry out educational sessions that simplify the law for laymen.
Moving forward, as lawmakers seek to improve the divorce and separation process, Leonida says that children’s rights should be enforced. For instance, if there is monthly child upkeep to be paid, there should be structures to ensure it is paid promptly without delay. Divorced parties should also be protected.
“In some cases, when a couple divorces, they continue to live within the same spaces such as markets, churches and water points, and when one party feels like they have lost “more” after divorce proceedings are finalised, they are likely to act out or frustrate their former partner. There is need for protection in such a case.”
