One of the questions after divorce is how to deal with
matrimonial property, what happens to that matrimonial home, car, pet and
accounts. Sometimes it is a dirty tug of war.
Traditionally, in African setting in general and Kenya
in particular, men were the family breadwinners and therefore property
ownership was attributed to the man of the house. Today women are empowered
professionally and economically, family financial responsibilities are
sometimes equally borne by both husband and wife, you may also find the wife
solely responsible for the purchase of the family house.
Before the Constitution of Kenya 2010, the division of
matrimonial property was dependant on the contribution of the spouse to the
acquisition of the property in question. Contribution in this case was
financial contribution, it excluded other contributions such as making home for
the husband, raising the children, companionship, management of the family
business or even farm work. This law and practice was seen as oppressive to the
women who made home for their husbands as they went out for business or
employment.
Equal Treatment and
Division
The Constitution of Kenya 2010 became the deal breaker
and game changer in the division of matrimonial property law. The new
constitutional dispensation requires matrimonial property to be divided equally
after divorce. The magic stroke is
Article 45 (3) providing that:
Parties
to a marriage are entitled to equal rights at the time of marriage, during
the marriage and at the dissolution of the marriage
Further, by dint of Article 2 (5) and (6), general
rules of international law all the international legal instruments ratified by
Kenya become part of Kenyan law. To this end, international conventions such as
Universal Declarations of Human Rights, African Charter on Human and Peoples
Rights, Convention on Elimination of all forms of Discrimination against women
(CEDAW) points to equality of sharing of matrimonial property upon divorce.
The courts have now moved and sidestepped the
unfortunate bad law made in the then male dominated Court of Appeal in Echaria v. Echaria and Muthembwa v. Muthemwa oppressing
women folks on account of proof of contribution.
There are series of court decisions upholding equality
of parties in marriage, the most recent one being the judgment of Lady Justice
Mary Gitumbi in CMN
v. AWM [2013] eKLR where the husband had singularly financed
the matrimonial house but when after divorce, the court decreed that the house
had to be divided equally between the parties.
In rendering deadly blow to the past inequality the learned judge had
this to say:
The
legal landscape has since changed so that it is no longer a question of how
much each spouse contributed towards the purchase of the property which matters
…the legal provision in force now requires this court to apply the principle of
equality instead. This court is duty bound to share the Suit Property [matrimonial house] equally between the Plaintiff [husband] and the Defendant [wife].
Prenuptial Agreements and
the Matrimonial Property Bill 2012
The Matrimonial Property Bill 2012 seeks to augment
the equality provisions of the constitution by further expanding acknowledging
that contribution need not be monetary contribution and may include home
management and child care.
Section 6(3) of the proposed legislation also provides
what is commonly known as prenuptial agreements, agreement before marriage on
how to divide and distribute matrimonial property. Matrimonial Property Bill
2012 is progressive in promoting equality of parties in marriage if, the male
dominated parliament does not shoot it down.
The new laws endeavour to give equal status to
financial and child rearing contributions. The new laws do not therefore divide
assets based on your financial contributions.
Generally there are two systems which obtain on matrimonial property rights under Kenya law
1. Community of
Property;
This is based on the assumption that marriage is an equal
partnership which has both a social as well as an economic dimension and that
system recognises that each party to the marriage performs an important role in
that social and economic unit even though their roles may be far in type or in
quality. This system assumes an equality in matrimonial property with
each party having an equal right to the assets of the marriage. In a pure
community of interest system, legal ownership of the matrimonial asset is joint
from the time of cohabitation or marriage. Therefore under the pure
community of interest approach at the celebration of the marriage all the properties
that are owned by either spouse are pooled together and deemed to be
jointly owned and this will include any property that was owned before the
marriage by the spouses.
In some legal systems you have a deferred community of
property approach and the joint ownership of property is deferr3ed until the
relationship breaksdown. Therefore under this approach during the
currency of the marriage either spouse may own their own property and use it in
any manner that they wish or dispose of it but in the event of the marriage
breakdown all the property they own is then put together and deemed to be joint
property.
In the community of property system in the event of the
marriage breaking down entitlement to that property is regarded as an incident
of marriage , it is regarded as one of those facts arising out of the marriage
itself and that property is then divided equally between the spouses.
This system is common in civil law countries, it is also
practised in south African countries like Lesotho and Botswana while the
Deferred Community property system is common in Scandinavian Countries.
This approach under kenya law presupposes that during the subsistence of
the marriage, either spouse may own separate property. However this has
not always been the case in the common law tradition and in fact under common
law husband and wife were regarded as one (doctrine of unity under common
law).
According to Lord Denning the common law regarded husband
and wife as one and the husband was that one. This was in a case of William
& Glyns Bank vs. Boland (1979) Ch. D 312 at 332. Under common law
all the wife’s property and income vested in the husband on marriage and a wife
could not own property separate from that of her husband.
In the 18th and 19th century England
it was common to have professional husbands and in Republic v. Smith (1915) 1
Cr. a case involving professional husband. Husbands married rich women
who then died under mysterious circumstances leaving them all the wealth.
With the onset of the industrial revolution, women started to agitate for
involvement in socially and economically productive work and sought
enfranchisement and the solution to the problem that commended itself was that
of separation of property because the problems in their legal status at the
time arose from the legal regime that applied to married persons. It was
therefore thought that if the spouses marital status no longer affected their
property rights then the problem would be solved. This led to the
enactment of the Married Women Property’s Act of 1882. This Act
recognised the right of married women to hold and own property separate from
that of their husbands. This is one of the Acts of general application
which applies to Kenya under the Judicature Act.
However, the paradox was that this system of separate
ownership which was created to protect married women’s rights became a serious
injustice especially when determining matrimonial property rights during
marriage breakdown. At the system of separation failed to deal adequately
with the economic realities of married life and this is because this system
insists that entitlement to matrimonial property be based on evidence of
contribution to the acquisition of that property. Given the different
roles of husband and wife in married life, it meant that especially women’s or
wives roles were not legally recognised ie. Their roles in contributing to
acquisition of matrimonial property. It therefore had the fatal
disadvantage of not giving recognition to a wife’s contribution by way of her
services in the home as opposed to those of the husband as the bread winner.
Basically this is because contribution that was required
to be shown had to be direct or financial contribution and not indirect contribution.