The place of a stay-at-home partner in the event of a divorce has become more vulnerable, thanks to a verdict issued by the High Court on Monday. The court ruled that partners are not automatically entitled to 50 per cent of marital property upon divorce.
But the Federation of Women Lawyers (Fida) is not satisfied with the decision, and it says it will contest it in the Court of Appeal. The organisation is seeking a 50-50 distribution of property upon divorce, saying spouses are equal during marriage and upon divorce.
However, partners in a marriage who are not employed or do not bring monetary support in a marriage will not walk out with nothing upon divorce
The Matrimonial Properties Act (MPA), which was upheld by High Court Judge John Mativo, acknowledges non-monetary contributions such as domestic work and management of the matrimonial home, child care, companionship, management of family business or properties, as well as farm work.
According to Justice Mativo, all that a party is required to do is to provide evidence of his or her non-monetary contribution in the marriage and leave it to the court hearing the dispute to determine.
“The court will rise to the occasion and in the circumstances of individual case, apply the evidence, the law and appropriate legal skills and arrive at a fair determination of the valuation of the non-monetary contribution in the circumstances of the case under consideration,” said the judge.
However, Fida chairperson Josephine Mong’are said the MPA had contravened Article 45(3) of the Constitution, which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at its dissolution. “If you have equal rights during and upon divorce, why do you have to prove your contribution? We feel that by requiring a partner, man or woman to prove contribution, the MPA has contravened the Constitution,” said Mrs Mong’are.
She said the case raises a constitutional question, which they are prepared to challenge up to the Supreme Court, if necessary. Fida is concerned that stay-at-home partners may be shortchanged because there is no formulae to determine the value of non-monetary contribution in marriage. “How do you quantify child care against a Sh100 million building the husband built, and they are now divorcing? A woman gave up a job in Uganda to look after the young children, how will the court quantify such a sacrifice and contribution?” Ms Mong’are posed.
Former Law Society of Kenya chief executive Apollo Mboya said the assessment might vary from one judge to another, but it would be upon the parties to prove their contributions.
“He or she will have to demonstrate that, say the partner acquired this kind of property, and during that period, he or she was taking care of the house, children, and providing companionship. Evidence will be led to demonstrate how doing all these contributed towards the other acquiring wealth,” said Mr Mboya.
He added that equality, as provided in Article 45(3), refers to equality before the law, not property sharing, and that the MPA seeks to enforce the equality by giving a partner, upon divorce, that which he or she contributed.
Lawyer Okweh Achiando said the MPA was good because it would benefit both men and women who are stay-at-home partners. He said it would also protect a hardworking woman from a husband who wants to freely benefit from the hard-earned wealth made possible by his wife.
“Today, young men marry older rich women hoping to benefit. That should not be encouraged. This law is protecting men and women in equal measure,” he said.
The MPA opens a new chapter in the Kenyan litigation history, where the courts have in the past ruled in favour of 50-50 sharing of marital property, whether or not that property is registered in the names of both parties.
One such case is when the Court of Appeal ruled in 1991 that Ms Mary Kivuitu was entitled to half the property in both hers and her husband’s name (former Election Commission of Kenya chief Samuel Kivuitu). This is despite the fact that the evidence presented in court showed that Mr Kivuitu had contributed most, if not all the funds, to buy the property (a house in Garden Estate, Nairobi), and a lower court had ruled that Mrs Kivuitu was entitled to only a quarter of it.
The court ruled that the wife’s contributions in terms of housework, taking care of the children and providing a comfortable home and peace of mind had enabled Mr Kivuitu to perform his duties as the bread winner, thus making her entitled to equal share of property acquired during their marriage.
In 1976, there was the landmark Karanja versus Karanja ruling, where the judge granted the wife half of marital property, even though it was registered in her husband’s name.