In a landmark decision, Justice Teresia Matheka said the housework and care work performed by a female spouse entitled her to an equal share of the matrimonial property at the time of the dissolution of marriage.
FIDA-Kenya has been fighting for parties in a marriage to get equal rights as per the constitution.
Lawyers have argued that the contribution made by women is huge and courts should consider them while making rulings.
Kenya has come a long way in determining the way matrimonial property is distributed upon the dissolution of marriage.
From relying on Section 17 of the Married Women's Property Act, 1882, which provided that property bought during the marriage was presumed co-owned and in case of divorce be sold and net proceeds shared equally, to a recent ruling where a judge said housework should be considered when distributing properties acquired during the marriage.
In a landmark decision, Justice Teresia Matheka said the housework and care work performed by a female spouse entitled her to an equal share of the matrimonial property at the time of the dissolution of marriage.
In the case, MW v AN married in 1990 but separated in 2003, the couple divorced in 2011 and a dispute arose over a house constructed at Nakuru.
Court documents showed that the house was registered in the name of the husband but the wife argued she had taken loans to finance the purchase of the land and the construction of the house.
She also stated that besides her job, she had been the sole caregiver in the family. The husband would hear none of it, stating that not only had he bought the plot on his own, but had also been providing financially for her upkeep.
The judge noted that mothering, housekeeping and taking care of the family is more often than not, not given any value when it comes to sharing matrimonial property.
"Raising children is a full-time job that families pay a person to do as well as cooking and cleaning. Hence, for a woman in employment who has to balance childbearing and rearing this contribution must be considered," she said.
The Judge said although the house was registered in the name of the husband, the maximum "equality is equity" would apply, and that the property should be valued, sold and each party gets half of the proceeds.
FIDA-Kenya has been fighting for parties in a marriage to get equal rights as per the constitution.
Women, especially in rural areas face numerous challenges in marriage. Many of the women are the sole caretakers of their children while their husbands are away 'providing for the family'.
Lawyers have argued that the contribution made by women is huge and courts should consider them while making rulings. The work they do include management of the matrimonial home, child care, companionship, management and family business or property, and farm work.
Lawyer Danstan Omari says unpaid care work is a win for women. The lawyer, however, said that women should document, where possible, their contribution during the marriage because, one must prove their contribution in the acquisition of the property.
"Where there is a direct contribution in terms of monetary, keep the receipts because they will come in handy. If there is a sale agreement and it shows that the property is registered in your name or you purchased several bags of cement, please keep them," he said.
However, the Court of Appeal judges overturned the two precedent-setting judgments that had ordered for 50:50 division of matrimonial properties.
The second-highest court in Kenya overturned the judgments made by the High Court and settled on sharing of properties based on each spouse’s contribution.
The courts have been struggling on the question of whether spouses should split matrimonial property equally upon divorce, and the issue is also pending determination at the Supreme Court.
According to Matrimonial Property Act (2013), "ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
