What you need to know:
- History will forever remember with gratitude the Rtd Justice Riaga Omolo who recognised contribution as including direct and indirect financial contribution.
- He localised non-financial contribution to include the housewife who takes care of the home and the woman who tills the land upcountry while the husband works in an urban setting.
- History also recalls positively the Rtd Justice R.O. Kwach, who recognised child bearing as an important contribution to families.
It is difficult to appreciate the gains that Kenya has made in the law on matrimonial property without looking at where we have come from. Up until we passed the 2010 Constitution, Kenya did not have a law on matrimonial property. We applied an old English Act, Married Women’s Property Act of 1882. As the English Act did not define what amounted to contribution to matrimonial property, among others, our judges made law to suit local circumstances.
History will forever remember with gratitude the Rtd Justice Riaga Omolo who recognised contribution as including direct and indirect financial contribution as well as non-financial contribution.
He localised non-financial contribution to include the housewife who takes care of the home and the woman who tills the land upcountry while the husband works in an urban setting. He said that both those women made a contribution to the property acquired during the marriage.
History also recalls positively the Rtd Justice R.O. Kwach, who recognised child bearing as an important contribution to families. Due to the robustness of the two judges and others, Kenya had before 2007 made great steps into settling matrimonial property law.
There was such certainty in the law that in April 2002 in the case of Muthembwa vs Muthembwa, the Court of Appeal tried to answer the remaining grey areas. One of those areas was the case of inherited property. While the court was clear that such property remained the property of the person who had inherited it, it opined that if it was developed with the contribution of the other party, then the other spouse should have a share in it.
The court also dealt with division of mortgaged or charged property and held that the parties should only share the balance of the property after the loan is paid. That, however, any loan taken after the spouses stopped living together should be serviced by the spouse who obtained it.
Unfortunately, the judges knew that until Parliament enacted a law, all the law they had made was not permanent. And it came to pass in 2007 in the Echaria Vs Echaria case. In the case, the High Court had divided the property equally between the husband and wife, but the husband appealed against the decision and invited the court to find that the only contribution that should count was financial contribution.
Of the previous decisions that had recognised non-financial contribution. The five-judge bench in the Court of Appeal stated thus: “It is our respective view that both Omolo JA and Kwach JA, though undoubtedly guided by a noble notion of justice to the wife, were ahead of Parliament when they said that a wife’s non-monetary contributions should be taken into account.”
They then held that: “As the case law currently shows, the status of the marriage does not solely entitle a spouse to a beneficial interest in the property registered in the name of the other, nor is the performance of domestic duties. Even the fact that the wife was economical in spending on housekeeping will not do.”
The justification used by the court to make that decision was that there was no local Act of Parliament that enabled them to consider contribution other than financial. Indeed, their frustration can be echoed by the following words in the judgment:
“It is now about seven years since this court expressed itself in Kamore v Kamore, but there is no sign, so far, that Parliament has any intention of enacting the necessary legislation on matrimonial property. It is indeed a sad commentary on our Law Reform agenda to keep the country shackled to a 125-year-old foreign legislation, which the mother country found wanting more than 30 years ago!”
From then on, the lobbying for a Matrimonial Property Act became centre stage. In the 2010 Constitution, Parliament was mandated to enact a law to protect matrimonial property, especially the matrimonial home. Thankfully, in 2013, Parliament passed the law and a new season began.
In summary, the Matrimonial Property Act (2013) recognises that contribution to property acquisition can be financial and non-financial. Non- financial contribution includes domestic work, management of the matrimonial home, child care, companionship, management of the family business and farm work. Matrimonial home is defined as property that is utilised or occupied as a family home and any property attached.
The Act distinguishes Matrimonial property from Separate property.
Matrimonial property means:
a) the matrimonial home or homes.
b) household goods and effects in the matrimonial home or homes.
c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage
Matrimonial property is protected as follows:
• It shall not be disposed of through sale, gift, lease, mortgage or otherwise without the consent of both spouses.
• It shall not be mortgaged or leased without the written and informed consent of both spouses.
• That spouses have an interest in matrimonial property capable of protection by caveat or caution.
• No eviction from the matrimonial home should be done without a court order.
The Act recognises that a spouse can acquire property that does not become matrimonial property. For such separate property, the other spouse only acquires an interest to the extent of their contribution to the acquisition and/or improvement of the said property.
The law also states that marriage does not affect the ownership of separate property or the right of either spouse to acquire, hold or dispose of any such property.
The greatest challenge that we have is on the premium to be placed on non-financial contribution, such that some judges give it 50 per cent weight while others give it as low as 10 per cent.
The problem could well be cultural in that we tended to overlook the contribution by the woman who would usually be the person at home looking after the family while in today’s life, we know (or ought to) that taking care of the family is the greatest contribution a person can make.
Indeed, our Constitution leads in the recognition of the family unit at Article 45, that family is the fundamental unit of society and the basis of social order. Is it really fair then to weigh the contribution of the spouse who takes care of the family marginally?
In conclusion, we have an Act of Parliament that is not perfect but into which we can breathe life into, like judges in the past, who really had nothing to work with, and yet made very sound decisions.
Why are children’s matters separated from divorce matters?
In the period before 2002 when Parliament passed the Children’s Act, their matters would be heard within the Separation or Divorce cases of their parents, where there was a marriage. Due to the nature of the bitterness surrounding divorce, the parties and the courts would focus more on the disputing parents rather than the children. As a result, children’s welfare would be bogged down and they would suffer greatly.
Thanks to Rtd Justice Effie Owour and her team, the Children’s Act provides for their cases to be heard separately and by magistrate’s gazetted as such. In a station like Nairobi, we have a fully-fledged children’s court with several magistrates.
Ms Thongori is a Senior Counsel and Family lawyer with over 30 years of practice. She is a Mediator in Family Matters and a strong believer that the family is the core of society and that as family conflicts are inevitable, any serious society should invest in family conflict resolution.