By Treezer Michelle Atieno
Over the last decade, Kenya has taken some steps to promote fairness and secure women’s rights within the institution of marriage. The enactment of the Matrimonial Property Act of 2013 was a significant step in the right direction. The Act has given women rights they did not have before.
A Kenyan woman can now purchase and register land individually and inherit land from her parents. However, gender disparities still exist in the control and distribution of economic resources, especially in the event of death or divorce.
Under Kenyan law in Article 45(3), men and women hold equal rights when they are married. To administer, hold, control, use and dispose of property. Additionally, the article states that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage.
However, after divorce, a Kenyan woman is still not assured of at least 50% of marital property. This is due to the contradictions in the relevant laws.
According to Matrimonial Property Act 2023, In the event of a divorce, the property acquired during marriage is divided according to the contribution of a spouse towards that acquisition. This means that a woman has to prove her contribution to the property’s acquisition to have a legal claim to it.
Monetary and non-monetary contributions are considered. Non-monetary contributions include farm work, management of the family business or property, companionship, childcare, domestic work and management of the matrimonial home.
This however ignores that it is difficult for a woman to quantify and prove contributions such as bearing and raising children, upkeep of the home, and other forms of unpaid work.
According to Human Rights Watch, there is no clarity on how women should prove non-monetary contributions and how such contributions should influence how matrimonial property is shared. While some judges acknowledge unpaid care in marriage, most do not.
Aside from the discriminatory matrimonial laws, social and cultural norms also play a huge part in this. Women are not allowed to own, and independently make decisions, over land and property within the context of the traditional marriage.
Other major obstacles in acquiring and sharing matrimonial property by women are minimal awareness of rights, inadequate access to relevant information and costs of legal proceedings.
The Human Rights Watch believes that Kenyan matrimonial laws fall short of the standards spelt out in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). According to Kenya Land Alliance, women in Kenya are holders of just 1.62 percent of all land title deeds issued between 2013–2017.