Outside their regular jobs, men perform a myriad domestic duties

A recent High Court ruling over a matrimonial property dispute has set tongues wagging. The case involved an estranged husband pitted against his stay-at-home ex-wife who based his case on the Matrimonial Properties Act that promulgates spouses’ proportional ownership of their financial contribution into any jointly owned property acquired after marriage.

In a case of a housewife whose financial contributions are probably zero, the law if strictly applied, would mean the husband owns all matrimonial assets acquired.

In a landmark ruling presided by Justice Matheka, which feminists have hailed as progressive, she asserted that it was unfair for courts to rule that housewives have no significant contribution to the financial progression of families. Visible income she argued, is not the only benchmark to evaluate financial value, and that staying at home to take care of domestic matters is a significant contribution.

Matrimonial property

Kenyan men under their apex body ‘The Men’s Conference’ have come out whining and bemoaning a grave injustice against one of them. Legal experts have charged that Justice Matheka has taken to judicial activism rather than strict interpretation of the law, to set law contradictory to matrimonial property legislation. Labour experts have questioned the formula used to determine the contractual basis of qualifying a housewife as an employee.

Questions also arise on who the housewife’s employer is and whether the provisions of the Employment Act apply. Gender equality activists conversely argue that what is good for the gander is good for the goose! With unemployment numbers on the rise, a significant number of stay-at-home fathers are inadvertently unemployed and taking on domestic roles.

The contractual nature of marriage only becomes obvious during separation or divorce otherwise, it is based on consent, goodwill and mutual understanding, culturally assumed to last a lifetime. The reality though, is that many couples renege on their vows and unless they have signed prenuptial agreement, division of marital property becomes contentious at separation. 

Domestic duties

Qualifying marital duties as employment is one way to consider the contribution of each spouse, but this would have to include the unpaid jobs husbands perform in their households as askaris,shamba boys, messengers, clerks, drivers, cooks, dishwashers, tutors, therapists, barbers, plumbers, cleaners, project managers, electricians, carpenters, mechanics, travel agents and masons among other roles. The good judge in her ruling erred by not acknowledging that outside their regular nine to five jobs, men perform a myriad domestic duties.

Regrettably on marital property rights, nobody listens to the other. The feminist says all and sundry is a fair game in a perpetual tit-for-tat, arguing that because men have had the upper hand from creation, such rulings are fair as they equal the scales.

The faithful say marriage is sacrosanct and made in Heaven and, therefore, both parties must never consider the unfairness of the contract of marriage. The traditionalist outlaw and stigmatise any consideration of women’s rights in marriage. And the law written predominantly by male chauvinists, is predictably silent on the plight of women.

Disputes on ownership of marital property are hard nuts to crack considering marriage is often celebrated while parties are immature, naïve, obligated by norms and oblivious to the nuptial vagaries post honeymoon.

Marriage ceremony

To cure this requires clarity at entry into the marital contract. Prenuptial agreements must become a legal standard of the marriage ceremony so that as consenting adults, we know what we are getting ourselves into from the get go.

The courts would also benefit as they would not need to pass decrees nullifying marital laws retrospectively as in the case of Judge Matheka. If companies are required to have standard articles of incorporation, marriages should also secure the material and other interests of both bride and groom from the first kiss.

The writer is an author, environmentalist and engineer, [email protected]