An Eldoret court has ordered a divorced couple to share their matrimonial property equally, after one of them confirmed that they acquired them together during their 26-year marriage.
The woman, identified as CRW in court papers, filed for divorce in the Eldoret High Court in 2008, saying her husband’s brutality and infidelity had soured the marriage.
“For long time I did not experience joy in my marriage. Instead of love, I was subjected to regular beatings and assault originating from my husband’s infidelity,” said CRW.
Long court battle
A long battle in court, with files occasionally going missing, and foot-dragging by the man, identified as MIO, did not deter her from pursuing the divorce.
But the 54-year-old mother of three did not anticipate that she would be the beneficiary of Article 45 (3) of the Constitution when she filed the case.
That section dictates that parties in a marriage are entitled to equal rights at the time of the marriage, during the life of the union and at its dissolution.
In July 2015, the court dissolved the marriage between CRW and MIO.
Matrimonial property and the law
That ruling sparked another legal battle – how their matrimonial property would be distributed.
CRW is grateful for Section 17 of the Married Women's Property Act, which provided that property bought during a marriage was presumed to be co-owned, and after divorce it would be sold and the net proceeds shared equally.
Justice Reuben Nyakundi factored Article 45 of the Constitution and Section 17 of the Married Women’s Property Act into his decision, directed MIO to share his matrimonial property with his former wife.
CRW had laid a claim to several matrimonial properties in the custody of her ex-husband, those registered in her name and those jointly held with him.
The property includes their matrimonial home, rental houses in Kimumu Estate, Eldoret, land parcels, shops, motor vehicles and household items acquired during their marriage.
The court directed that the two share equally proceeds from the sale of their matrimonial and the Kimumu Estate property, among others.
The court also ordered the man to release all household items, including sufurias and electronic goods to his ex-wife.
Wife took loans
Though court documents showed that some of the property was registered in the man’s name, the woman argued that she had taken loans to finance their purchase.
She also stated that she held a job and had been the sole caregiver in the family after the man disregarded his duties as the father of their children.
“A declaration is hereby issued that the household items of the plaintiff be released to the plaintiff with immediate effect,” declared the judge.
In his defense, the man claimed that he personally bought some of the family property and maintained that he had been providing for his family until his ex-wife moved out of their matrimonial home in 2008 before filing for divorce.
The judge also directed that the cost of property valuation be equally shouldered by the two parties.
The decision in this case comes at a time when FIDA-Kenya is fighting for parties in a marriage to get equal rights under the Constitution.
FIDA argues that a majority of women in rural areas face numerous challenges in their marriages and many are the sole caretakers of their children while their husbands are away.
Property legal experts argue that women make large contributions in their households and courts should consider this when making rulings.
In many marriages, women are seen as home managers, childcare experts, companions and managers of family businesses or properties.