Divorcing after 10 years: Can a housewife claim a share of property for homemaking and childcare?
A couple that has been married for 10 years and is divorcing.
What you need to know:
- The Constitution and the Matrimonial Property Act provide that spouses have equal rights in marriage and upon its dissolution.
- The courts have upheld that a wife's non-monetary contributions, including childcare and homemaking, are crucial in enabling the husband to work and acquire property.
Dear Vivian,
I have been married for 10 years. Throughout my marriage, I have been a full-time housewife, managing our home, raising our children and ensuring the smooth running of our household while my husband worked. In marriage, we acquired assets, including two cars, a house, and a one-acre parcel in Mua Hills, all of which are in his name. Additionally, I went through pregnancy, childbirth, and the responsibilities of raising our children. Now that we are on the verge of divorce, does the law consider childbirth and homemaking as contributions to a marriage?
Leah Musyoka,
Machakos
Dear Leah,
Your concerns are valid, and it is important to understand that Kenyan law recognises not just financial contributions but also non-financial contributions such as childbirth, childcare, and homemaking when determining the division of matrimonial property upon divorce. While the assets may be registered in your husband's name, that does not automatically exclude you from having a rightful claim to them.
The Constitution and the Matrimonial Property Act provide that spouses have equal rights in marriage and upon its dissolution. This means that all contributions, whether financial or non-financial, are taken into account when determining how matrimonial property is shared. The law defines matrimonial property to include assets acquired during marriage, regardless of whose name they are registered under. Your role as a full-time housewife, including managing the home and raising children, is legally recognised as a contribution to the marriage. Furthermore, childbirth itself is considered a significant contribution, as it involves physical, emotional, and financial commitment that directly impacts the family unit.
Kenyan courts have upheld this principle in various rulings where they have acknowledged that a wife's non-monetary contributions, including childcare and homemaking, were crucial in enabling the husband to work and acquire property. Similarly, the Court of Appeal has emphasised that a spouse’s domestic work, including childbirth and raising children, should not be undervalued in determining property division. These cases affirm that as a mother and homemaker, your contributions to the marriage hold legal weight.
To claim your share of the matrimonial property, you can file a case in the High Court (Family Division) seeking an order for its division. The court will assess your role in the marriage and the acquisition of assets before making a determination. Additionally, since you have children, their welfare remains a key consideration in family law. If you obtain custody, your husband will be legally required to provide financial support for their upbringing.
Read: I’m divorcing my wealthy husband; am I entitled to a share of the property he had before our marriage?
It is advisable to seek legal assistance from a family lawyer who can guide you through the process. Should you not have the financial capability to seek the services of a lawyer, there are organisations that offer legal aid to women facing such challenges and can provide support in pursuing your claim.
Based on Kenyan law and court precedents, you have a strong legal basis to claim a share of the assets acquired during your marriage, despite them being in your husband's name. Childbirth, homemaking, and childcare are recognised as valuable contributions to a marriage, and they should be considered in property division.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).