Property Bill a mixed bag, say lawyers

Lawmakers and lawyers describe the proposed new law on the sharing of property when marriages end as a mixed bag of roses and thorns.

A closer look at the Matrimonial Property Bill, they say, reveals things to celebrate, although there are areas where the MPs who passed it on Tuesday could have done better.

Ugenya MP David Ochieng, who had the House going back to insert the contentious amendment that limits matrimonial property acquired after marriage to what is jointly owned, said his idea would encourage couples to own property jointly.  

He said his amendment, which has sparked heated debated among Kenyan women, will work for the benefit of the family, especially in cases where a spouse dies.

“Where I come from, in-laws have the habit of plotting to take over family property, especially where the man dies. If couples made a habit of investing in property jointly, such cases would be unheard of,” he said.

According to the Bill, where property is registered in both the couples’ names, and one dies, it would automatically revert to the surviving spouse.

PROPERTY AND NAMES

But not everyone agrees that the change will benefit the woman. Meru Women’s Representative Florence Kajuju says the clause discriminates against women.

“As an advocate, I’ve witnessed many cases where men are reluctant to include their wives’ names in property ownership documents,” she says.

Ms Kajuju points out that in some cases, it is the women who take out the loan to buy the property, yet the agreement or title deed is drawn up in the name of the man only.

“This amendment means that at the end of the day, this property does not necessarily become matrimonial property. Why then should a woman put so much effort in terms of time and money, yet what she sacrificed so much for can easily be taken away from her?” she said.

She reads mischief, pointing out that the Justice and Legal Affairs committee had agreed to pass the Bill as it was, only for Mr Ochieng to bring it to the floor of the House, where there were bound to be many opposing voices. Most of the committee members are men, many of them lawyers.

In a rejoinder, Ochieng said he had “read the mood” of the House and knew the Bill would not have passed as it was.

“Why give the men a chance to reject a good Bill? It was important to give men something that would have encouraged them to pass it.”

Also, should the President assent to the Bill, spouses would no longer be entitled to an equal share of the matrimonial property should they go separate ways. Instead, what one will get to keep will be determined by the contribution he or she made towards the acquisition of that property.

These amendments have infuriated women across the country, the general feeling being that the contribution they make towards the growth and prosperity of their families is disregarded.

But Ms Priscilla Nyokabi, the vice-chair of the committee, says that though misinformed, this particular clause should not give women sleepless nights because the Constitution recognises equality during, and after dissolution of a marriage. “You are not powerless; the Constitution empowers you to go to court to claim what is rightfully yours,” she said.

The Bill gives the courts power to determine what the contribution would mean in actual terms. This means that a judge would determine the fraction of the property to be granted to the spouse whose contribution was non-monetary.

DEFINITION

She also feels that the Bill is not all bad.

“It (the Bill) is a mixed bag; there are some amendments that need to be reviewed, but we did get some wins.”

The biggest loss for women, she feels, was the definition of matrimonial property, which will no longer refer to that property owned “by both or either spouse during the subsistence of the marriage”.

“This one wasn’t well thought out, and if I had my way, matrimonial property would refer to that which is acquired within subsistence of marriage.”

Interestingly the Bill also states that should a marriage break down, the couple shall equally share any liability incurred during the subsistence of the marriage. Part of these gains, she points out, is the encompassing definition of “contribution” which goes beyond the monetary aspect – if you are a stay-at-home wife, and charged with the duty of washing your husband’s clothes, preparing his meals, and ensuring that your home is comfortable and clean, your efforts are recognised. So is caring for the children, tilling the family shamba, offering your spouse companionship, and managing the family business.

Ms Nyokabi says even though the general impression is that women were sidelined while the men got all the goodies, she and her female counterparts put up a spirited fight.

“The committee is largely made up of men – we’re only four women against 25 men, so there was bound to be a struggle,” she said.

Ms Nyokabi says the committee’s view is that the President should assent to the Bill.

“Amendments can always come later; you would rather have a law in place than not have one at all,” she said. Ms Judy Thongori, a family lawyer, said with the passage of the Bill, the country has moved a few steps in the right direction.

OUTDATED ACT

“The greatest protection for the family would have been to leave the Bill as it was, but at least now we will no longer be guided by the outdated 1882 Act of England,” she said. She singled out several pluses, especially Section 14, which reads: “Where matrimonial property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse.”

What this means, for instance, is that one spouse cannot sell, gift, mortgage, or lease the matrimonial home without the consent of the other spouse. Should this happen, one can contest it in court. Another plus, says Ms Thongori, is the fact that we now have the definition of “contribution”.

“Before, this term was open to interpretation; now we have something definite, something concrete.”

She urged Kenyans not to view the Bill in isolation, saying that being a family Bill it would benefit the entire family unit: men, women, and children.

“If a woman gains or inherits property, it is not for her benefit only but for the children as well.”

“Kenya’s families could have got more, but at least we got something we can work with,” she said.

Earlier this week, women lawyers criticised the passage of the Bill, calling it unconstitutional. Federation of Women Lawyers, Kenya (Fida-K) threatened to go to court to challenge the law if President Kenyatta signs it.

“We are not supposed to bring back customs that continue to discriminate against women. In some communities, women are not allowed to own land, forcing them to register it in their husband’s names. In case of divorce, such women will lose everything if this Bill becomes law,” said Fida-K chairperson Ms Ruth Aura.

Also reacting to the matter in an earlier interview, Law Society of Kenya chairman Eric Mutua asked President Kenyatta not to sign the Bill into law.

“What was passed in Parliament is unconstitutional,” Mr Mutua said.