​​​​​​​Matrimonial property: Women's task of proving intangible input

Varied court rulings on division of matrimonial property have highlighted grey areas in gauging value of non-monetary contribution in acquisition of family wealth.

In May, 2020 for instance, Mombasa Court of Appeal overturned High Court’s ruling in which it had awarded a woman 10 per cent share of land bought during her 16-year marriage.

The Appellate Court considered her non-monetary contribution mainly childcare, companionship and management of the matrimonial home in revising the share to 50/50 per cent.

The woman argued that the High Court had failed to consider her indirect contribution in ruling that her ex-husband takes the 90 per cent stake while she contends with the 10 per cent.

In April, a woman in Kakamega was awarded a 30 per cent stake of their matrimonial property pegged on her intangible roles as providing childcare and companionship.

She did admit of her lack of monetary contributions as she was unemployed during their 11-year marriage, but said she devotedly offered the indirect contribution which enabled her then husband acquire the disputed property-land.

While in June, 2019, although the Muranga’a High Court reaffirmed that either party is guaranteed a share of the property dependent on his or her direct or indirect contribution, the judge emphasised that the input must be proven.

SPOUSAL CONTRIBUTION

In 2016, the Federation of Women Lawyers-Kenya (Fida-Kenya) petitioned a Nairobi High Court to invalidate Section 7 of the Matrimonial Property Act (2013) which prescribes that a spouse shall get a share of his or her contribution when they divorce.

Fida-Kenya preferred matrimonial property to be shared equally irrespective of the spousal contribution, a measure the women lawyers held could protect women from unfair share owing to their historical marginalisation in property ownership.

Judge John Mativo, however, dismissed the petition in 2018 saying:“The Act, recognises monetary and non-monetary contribution, which is clearly defined. By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage.”

And now, the task to evaluate non-monetary contribution is at the discretion of judges while proving that intangible input has put women in a catch-22 situation. 

During a webinar early this month, Fida-Kenya’s chairperson Nancy Ikinu said women are losing legal battles for equitable division of matrimonial property as they cannot prove their non-monetary contribution.

“The question of non-monetary contribution is actually the most significant hurdle for women who seek to assert their rights,” she said during the Matrimonial Property: Intersections of the law in Kenya webinar organised by Human Rights Watch (HRW) and Fida-Kenya.

Whether a woman gets a share equal to the value of her input or not, is left to the discretion of the judges which Ms Ikinu said is erratic and discriminatory.

“Analysis of judgments of the High Court and Court of Appeal differ substantially,” she said.

“Others give value and others percentages (but) we have no way to know how the judge determined the percentages as there is no clear guidance (on valuation).”

50/50 SHARE

In concurrence, Kakamega High Court Judge William Musyoka noted ambiguity and confusion in prosecuting matrimonial property disputes.

“Decisions that we are getting from the Court of Appeal have so far, not been very helpful in streamlining the law with regard to division of matrimonial property,” said Judge Musyoka during the webinar.

“There are cases where the Court of Appeal has come up with decisions where property has been divided at 50/50 per cent in other cases it goes down to 70/30 per cent. In other cases (it goes down) to as low as 90/10 per cent. Therefore the principles we are getting from there have not helped the High Court very much.”

A recent survey by HRW and Fida-Kenya, involving 65 women from Kakamega and Kilifi counties, found ambiguous laws, outdated laws and discriminatory social and cultural norms to be greatest impediments to women’s claim over matrimonial property.

“Compounding the ambiguity over documentary evidence on contribution is a lack of a consistent system or valuation methodology across any of the courts, for proving and calculating contributions,” reads section of the Once You Get Out, You Lose Everything” Women and Matrimonial Property Rights in Kenya report.

“Some judges recognise women’s unpaid care and domestic work, while others do not, and there is no High Court or Ministry of Justice guidance on which course to follow leaving lower court judges unsure how to proceed.”

NON-MONETARY CONTRIBUTION

Data from 2008 survey by Kenya National Bureau of Statistics (KNBS) indicate existence of 212,972 divorcees and 355,018 estranged partners. The numbers are likely to have risen in the past decade.

The report recommends that: “Parliament and Judiciary should urgently revise and amend Matrimonial Property Act (2013) to clarify the phrase ‘proof of contribution’.

“(They) should include clear provisions on valuing and weighting non-monetary contribution relative to monetary contribution.”

Fida-Kenya executive director Anne Ireri emphasises that the burden to prove non-monetary contribution disenfranchises women.

“What we need is proper guidelines and standardised formula that equally calculates women’s contribution,” she asserts.

She says the Constitution equates both spouses equal value in a marriage and that extends to contribution they make in acquisition of whatever property.

Article 45 (3) of the Constitution provides for the equal rights of parties to a marriage at the time of the marriage, during the marriage and at the dissolution of the marriage.

Further, Article 60(1) (f) provides for the elimination of gender discrimination in law, customs and practices related to land and property in land.

She avers that: “It is the woman who cooks, cleans the children, who washes the husband’s shirt, for him to go look for that money.”

REVENGE MISSION

“So the contribution is 50/50 per cent because she maintained the family property as opposed to some judges applying 20 per cent, 70 per cent or 30 per cent because that is where women get disenfranchised and discriminated against.”

Gender expert Catherine Nyambura notes that study findings on time women spend on unpaid work, is a starting point in evaluating their non-monetary contribution.

“Women have to take time from productive work to take up reproductive roles in the context of marriage so it is unfair to fail to recognise that contribution as a component of marriage,” she states.

But Kenyans have varied opinions on how to go about non-monetary contribution.

Mr James Kariuki, a business journalist says it is a tough task to quantify non-monetary contribution since women play multiple roles in the household that ensure smooth running of the family.

He says ex-spouses should be fair in sharing property and they can do so through arbitration instead of involving the courts.

“Be sincere with one another and agree on amicable terms on what each can take. Sharing the property should not be some sort of revenge mission,” he says.

Ms Grace Sarange, a teacher in Vihiga County, says childcare is a full time job and should be evaluated as equal to paid work.

“The fact that a woman or a man has raised a child is enough evidence of how much he or she has contributed towards acquiring wealth. Would you work if a child is sick? Of course not!” says Ms Sarange.