Women’s rights to property upon divorce must be legally protected

 In most cases where the husband holds all the power in the marriage, it could be futile for the wife to insist on having her name on the matrimonial property.

Myriad cultural, social, and institutional barriers hinder women’s access to justice and a fair share of matrimonial property. It is very sad that, even when women do seek relief from the courts, they face a judiciary unprepared to adjudicate non-monetary contributions matrimonial property.

Discriminatory social and traditional practices on marriage and inheritance compromise women’s ability to own, manage, and control land and property. The problem for women begins even before they file for divorce as they are never able to own and independently make decisions over land and property within the context of the traditional marriage in the first place.

The problem becomes a crushing reality when the marriage ends. In succession (inheritance), the wife has nothing. Same in divorce. She takes her personal belongings — nothing else — and leaves her children.

Culture

The truth about our culture is that, once the woman gets out, she loses everything.

For most women seeking to leave a marriage, the fear of intimidation from the husband or his relatives and traditional dispute resolution that reinforces discrimination means they leave with little more than a few personal belongings.

In most cases, the elders enable the woman to remove her personal belongings from the home but are very clear that she cannot be given a share of the house or land.

The government has an obligation to uphold the principles of equality, equity, and non-discrimination, which are an integral part of the constitution, as well as regional and international human rights standards.

These standards also guarantee women and men equal rights in marriage and during divorce, including taking steps to ensure equality in ownership, control, and distribution of matrimonial property, and ensure equal access to justice to claim these rights.

The current situation in Kenya falls short of regional and international human rights standards that call for equal rights to land and property between men and women.

 Matrimonial property

Ownership of matrimonial property is directly related to women’s rights to land and other productive resources, such as access to credit and agricultural inputs.

Ensuring a fair division of matrimonial property is a key part of protecting women’s rights within the context of marriage and divorce.

Such fair division also provides an important insight into how women’s economic contributions, including their unpaid domestic and care of children and other family members, are valued in society.

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