Society should be enlightened on the proprietary rights of women

By Kristine Gathoni Mugo

Women’s rights to property have greatly evolved in the recent past. In the past, there were disputes regarding women owning property because of the patriarchal society we are in and women’s marital status.

Married women were disinherited and their plight disregarded.  As a matter of fact, if not for activism and the push for equal rights, the society would not have seen the need for women to own property.

The Married Women Property Act of 1882 Laws of Kenya borrowed from the United Kingdom was largely applicable in Kenya until 2013 when Kenya enacted her Matrimonial Property Act.

This Matrimonial Property Act recognizes married women as equal property owners in a marriage who have rights to dispose property off as they deem fit in the course of a marriage, divorce or separation.

This Act notes that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards the acquisition of property and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

‘Women have belabored to prove their contribution to the acquisition of property during the division of property after divorce.’

Section 17 of the Matrimonial Property Act, 2013 states that “a person may apply to a court for declaration of rights to any property that is contested between that person and a spouse. An application under subsection (1) of the Act shall be filed in accordance with such procedure as may be prescribed and it may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”

The introductory section of the Act defines what “contribution” is.

The Act also defines family business as a business run by a family for the benefit of the family.

It has defined a matrimonial home as any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home.

The Act has expressly stated that matrimonial property means the matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

The subject of dispute in many matrimonial causes and the issues of determination by courts is whether a particular property claimed by either spouse forms part of matrimonial property.

Property held in trust under customary law does not form part of matrimonial property.

Prenuptial agreement refers to an agreement in which parties to an intended marriage may enter before their marriage to determine their property rights.  Despite parties entering a prenuptial agreement, a party to an agreement may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

Additionally, courts have extended the scope of contribution made by either spouse in defining, determining, dividing and settling matrimonial property claims.

In September 2021, while presiding over a matrimonial dispute, High Court Justice Teresia Matheka stated that being a housewife should be considered a full-time job.  She also stated that it is unfair for courts to lock out housewives during property division solely on the basis that they did not have a formal white-collar job.

The Judge further stated that housewives make significant contributions to the progress of the family by doing the household chores, caring for the issues of a marriage and maintaining the household. It is on this basis that she declared that housewives should not be considered jobless and lacking monetary and valuable contribution to acquisition of property.

‘Carrying a pregnancy is tantamount to working.’ she pointed out.

The court noted that a spouse loses matrimonial property claims where the contribution was not in liquated monetary value which is unfair. She also cautioned that spouses who make monetary contribution disregard non-monetary contribution to the household.

More needs to be done especially on civic education on women rights so to enlighten the women and the society on the proprietary rights of women.

The author is an advocate, a mediator and managing partner at Gathoni Mugo & Co Advocates

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