Bill strips women of family wealth rights

Parliament Tuesday evening passed a lop-sided law which strips women of the right to an equal share of family property in case of divorce.

Male MPs changed the Matrimonial Property Bill to say that a man and his wife will share matrimonial property according to each person’s contribution.

They also forced another change to the Bill which, if it becomes law, means that spouses are only entitled to a share of property which is in their joint names. Property which is in the name of only one spouse is no longer matrimonial property.

Stay at home mothers

In its current form, the Bill is a blow to stay-home mothers who contribute to the family in non-financial ways. Also, family property is traditionally and as a matter of routine, registered in the father’s name.

Women MPs wanted a simple formula where the wealth is shared equally, irrespective of what each partner contributed.

But with only 34 women MPs in the House, they were beaten 87-28 in a physical vote.

The House — whose attendance yesterday was unusually high — also passed the Bill which, while requiring the couple to share wealth depending on contribution, says the burden of debt incurred by the family is to be shared equally by both partners. The debt will be shared so long as it was “for the benefit of the marriage”.

According to another amendment pushed by the MPs, matrimonial property is defined as “matrimonial homes, household goods and effects in those homes and any other immoveable or movable property jointly owned by both spouses”.

“If there is any property to be divided, it must be in accordance with the share of each spouse’s contribution to the matrimonial property. It ensures that no one person just sits and waits for the other person,” said Justice and Legal Affairs Committee chairman Samuel Chepkong’a, who proposed the amendment.

In the debate touched off by his amendment, there were impassioned speeches.

Dr James Nyikal

Dr James Nyikal (Seme, ODM) was among MPs who argued that property ought not to be shared equally irrespective of contribution.

“If it is taken for granted that just being in the marriage everything will be shared equally and there will be no question, I don’t think that will be fair,” said Dr Nyikal.

Ms Millie Odhiambo (Mbita, ODM) lost despite her argument that equal sharing is a constitutional principle and MPs had no business suggesting that the contribution of each partner should be determined.

“The Constitution is very clear about equal rights before, during and after dissolution of a marriage. It is not really anything we have a choice about and that is an argument that we would have had very well when making the Constitution but at this point, unless it is calling for the amendment of the Constitution, the principle is clear in the Constitution,” she said.

Ms Zainab Chidzuga (Kwale County, ODM) argued that women’s contributions to marriages are more than just the financial.

“Mwanamke akiolewa anaweza kuwa pengine hana kazi lakini mfahamu kwamba atakuja kwake kufagia, kumchemshia bwana maji amabayo pia ni contribution, na mengineo mengi ya kuwa waeze kupata equal share (A woman might be unemployed but remember she will clean her husband’s house, warm his bath water and many other things that may be considered a contribution that should enable her get an equal share of any matrimonial property),” she said.

She is entitled to 50 per cent  

Ms Esther Murugi (Nyeri Town, TNA), said: “Whether the woman has contributed or not, she has fed the man, she has cleaned the man, she has taken care of the family. She is entitled to 50 per cent.”

When Ms Rachel Shebesh, who was chairing the session, put the matter to the vote by acclamation, the amendment appeared to have sailed through, but the women MPs marshalled the numbers to force a physical vote. That was where the men won 87-28.

Mr David Ochieng (Ugenya, ODM) had the MPs return to the Bill after the Third Reading to include the provision that only property that would have been owned jointly would be shared equally.

This drew protests from Ms Wanjiku Muhia (Nyandarua County, TNA), who said that would be unfair to women because many of them are not jointly registered as owners of property acquired by their husbands.

She was supported by Ms Florence Kajuju (Meru County, TNA) who argued along the same lines.

“We don’t live in Utopia. We know that in our society, it is very rare for a woman to be registered as the owner of property,” she said.

The women were once again outnumbered by the men in the vote.

Mr Chepkong’a had to withdraw an amendment removing a provision which allows spouses to go to court to nullify a pre-nuptial agreement if it is determined that it was influenced by fraud, coercion or is manifestly unjust.