Women judges agitate for equality in divorce

An image illustrating divorce. Participants at the International Association of Women Judges summit said courts in Uganda and Kenya usually shared property according to a spouse’s contribution. FILE PHOTO

What you need to know:

  • Participants said courts in Uganda and Kenya usually shared property according to a spouse’s contribution.
  • Women judges at the Nairobi conference urged courts to use the rulings to bridge the gender gap and promote equality.

Women gain more in the event of divorce, contrary to popular belief that they get the short end of the stick, a judges' summit has been told.

This was revealed during the 15th Africa conference of the International Association of Women Judges last month.

Participants said courts in Uganda and Kenya usually ordered that property be shared according to a spouse’s contribution.

Since the contribution is not necessarily monetary, women score better than their partners when child-care and household chores are taken into account.

It is four years since a ground-breaking divorce ruling that changed the law on property ownership in Uganda.

Before that, the country relied on laws that dated back to the pre-independence days.

The law was changed to provide for a fair distribution of jointly acquired property at the dissolution of a marriage or upon the death of a partner.

The outcome granted Ugandan women the power to seek and be granted divorce on an equal basis with men.

Contribution in marriage includes child-care and domestic chores.

In 2013, the court declared that in the event of divorce, a spouse can share property that was acquired either during the marriage or before if one proves she or he contributed to its acquisition or development.

But even more importantly, it put clearly that such contribution could be monetary or in kind.

The ruling, referred to as the Rwabinumi Decision, is now the law in Uganda.

It binds lower courts, which are required to follow it when deciding issues of distribution of property.

A third case that uplifted women in Uganda was a bride price refund matter in 2015.

It held that the demand for return of bride price before a customary marriage could be legally dissolved violated the right of women to equality and equal treatment.

Until then, most communities demanded that bride price must be refunded to the man before such a marriage could be dissolved. 

In Kenya, a case involving a couple that got married in 1961, had seven children and went their separate ways in 2001 prompted a in the law on sharing property after divorce.

The woman who first filed the case in the High Court wanted the property registered in her estranged husband’s name given to her.

She sued in 2004 but the case was concluded eight years later.

The woman was awarded some properties but the issue still landed in the Court of Appeal.

In March, three judges comprehensively defined the law on sharing matrimonial property.

Justices Phillip Waki, Patrick Kiage and Festus Azangalala ruled that it has to be done in line with each spouse’s contribution.

However, they pointed out that arriving at conclusions on distribution of property would ultimately depend on the circumstances of every case.

The matter is still the subject of another case in which the Federation of Women Lawyers (FIDA) is seeking the 50-50 rule to be upheld.

With the comparisons, women judges at the Nairobi conference urged courts to use the rulings to bridge the gender gap and promote equality.

The judges said it was only through such bold and enforceable judicial pronouncements that voices of women would be heard.

“We exercise our power not only through the decisions we render, but also through the process we follow in arriving at those decisions,” Justice Esther Kitimbo Kisaakye of the Supreme Court of Uganda said.

“Eradicating poverty, especially among women, will require us to reflect more on how to approach matters brought before us.”

It was also pointed out that in Africa, poverty has been given a female face not only because of the scenario where women lack income but also because of gender prejudice.

In Tanzania, a court ruled that the Haya customary law, which stipulated that females had no right to sell clan land, was contrary to international laws.

Justice Stella Ogene of the Court of Appeal in Delta State in Nigeria hailed the verdict.

She praised the Ugandan rulings, which set aside laws that prohibited cultures, customs or traditions that were against the dignity, welfare or interests of women.

Dr Kisaakye, who also doubles as the president of the National Association of Women Judges in Uganda, challenged her colleagues to use their positions to break the cycle of poverty in line with the United Nations Sustainable Development Goals.

“Decisions of constitutional and supreme courts can have far-reaching implications beyond the parties that took the disputes to court,” Dr Kisaakye said.