Why non-monetary contributions matter in matrimonial property cases in Kenya
A divorcing couple. Legal recognition of non-monetary contributions is reshaping property disputes and advancing gender equality for divorcing couples in Kenya.
What you need to know:
- Recent court judgments highlight how unpaid care work influences matrimonial property division when marriages end.
- Legal recognition of non-monetary contributions is reshaping property disputes and advancing gender equality in Kenya.
Kenyan courts are increasingly asserting that indirect and non-monetary contributions count towards determination of claims to matrimonial property when marriages break down.
In a recent case, the High Court judged that “a woman who used her salary to meet household expenses, indirectly enabled her husband to save, service loans and acquire property, thereby establishing a beneficial interest in assets such as plots of land, a motor vehicle and a matrimonial home” (Daily Nation, June 3, 2026). It went ahead to award her 30 per cent share of the value of the assets.
This is based on the Matrimonial Property Act (2013), which exemplifies non-monetary contributions as: domestic work and management of the matrimonial home; childcare; companionship; management of family business or property; and farm work.
Before this law, matrimonial property disputes were adjudicated using the Married Women’s Property Act (1882) of the United Kingdom. It required proof of direct financial contribution to qualify for a share of contested assets.
In this context, the Matrimonial Property Act made a radical departure by assigning value to the non-monetary contributions. The argument was that women would be routinely rendered destitute on breakdown of marriages because they could not prove financial contribution to property.
This would happen because of the gender-skewed nature of property ownership in Kenya. Men often have a head start because of the patriarchal inheritance patterns and traditional gender division of labour where they are the main breadwinners while women are homemakers.
The philosophy behind the law is that the opportunity cost incurred by women when they sacrifice career and income-earning opportunities for the sake of families must be valued. It is the same principle that now recognises unpaid domestic care work as an economic contribution for inclusion in national statistics.
Despite the law, many women still lose out because property is primarily registered in the names of their husbands, hence giving the latter legal recognition as absolute owners. This brings to mind the advice by Justice Reuben Nyakundi that couples should start writing prenuptial agreements on how their matrimonial property would be divided should they decide to part ways.
The extent to which couples would follow it is debatable. This is simply because at the beginning of marriage, people are extremely optimistic and do not envisage a breakup. But observing the advice would save courts a lot of time in determining who gets what.
Matrimonial property suits
A look at the cases shows that it is mostly women who sue for matrimonial property. Some have been recognised as joint owners and given half of some property. In others, the non-monetary contributions have been acknowledged but with a caveat that they do not automate 50 per cent sharing. In most cases, the principles of fairness and proportionality have been applied.
Two cases of men suing stand out. In a 2024 case in Nakuru, a husband sued for property registered in the wife’s name. The court declared joint ownership and awarded him a farm, half of a parcel of land and some vehicles. In another 2024 case in Nairobi, the husband claimed a share in the wife’s business. The court acknowledged that he had provided managerial support and awarded him a proportional share. While these cases demonstrate the gender sensitivity of the law, that the majority of the suits have women as claimants is testimony that economic power still largely lies in men’s hands.
One potential area of controversy is that of companionship. In the recent case, the court observed that the woman provided companionship to the man in her role as a wife. But companionship can be challenged on several grounds. One, many marriages break down precisely because of deficient companionship.
Are courts assuming that companionship is automatic in, and intrinsic to, marriage? Two, how do you measure it and quantify how much is equivalent to what value of property? Three, is companionship not reciprocal, that when a wife provides it, the husband is also doing so? In which case, does it not cancel out and become irrelevant?
Another debatable point is the extent to which this law is beneficial where there is no substantial property to divide and in cases where the only assets are ancestral. The law excludes ancestral property from matrimonial assets because they are held in trust for the current and future progeny.
But does this not mean that when marriages break down, women are automatically disadvantaged because they leave while the husbands remain in the ancestral property, given our patriarchal systems? Would one be wrong then to say that this law is intrinsically biased against such women and that it was made for middle and upper class contexts where people generate wealth beyond the ancestral ones?
The writer is a lecturer in Gender and Development Studies at South Eastern Kenya University ([email protected]).
