The share of married men who now own homes and land solely has shot up in the last eight years following the enactment of more progressive laws that have empowered women in post-divorce property disputes.
More than half or 51 percent of married men surveyed by the Kenya National Bureau of Statistics (KNBS) last year said they owned homes alone, a jump from 36 percent in 2014.
The findings of the Kenya Demographic Health Survey 2022 released by the KNBS on Tuesday also show that the fraction of married men who own agricultural land alone jumped from 28 percent nine years ago to 41.5 percent, pointing to a growing trust deficit among married couples.
This comes at a time the number of divorce cases before the courts have been rising, with disputes over the sharing of matrimonial properties among the issues judges are often asked to arbitrate.
However, the proportion of women who own homes and land alone fell sharply, while those who said they jointly owned these properties rose.
Suyianka Lempaa, an advocate of the High Court, said that the trend where more married couples are opting to own properties on their own has been attributed to court decisions which have increasingly ruled in favour of equal sharing of property in case of joint ownership.
“With the new Constitution and Matrimonial Property Act, if the property is jointly owned the possibility is that you will divide it equally in case of a difference with your spouse,” said Mr Lempaa.
Article 45 (3) of the Constitution states that “parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.”
This means, regardless of whether either spouse acquired the property alone, as long as it was acquired during the lifetime of the marriage, the court is more likely to rule that it be split equally between the two in case of a dissolution of the marriage.
“Subject to section 6(3), 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,” states Section 7 of the Matrimonial Property Act.
Federation of Women Lawyers in Kenya (FIDA) challenged the said section in 2018, arguing that parties to a marriage are entitled to equal rights as per the Constitution.
The petition was, however, dismissed by the High Court, stating that if the request were allowed, it would create a “loophole for fortune seekers” to benefit from their spouse’s success in case of a divorce.
In the famous case of Echaria vs Echaria involving Peter Mburu Echaria, a former diplomat, and his estranged wife Priscila Mburu Echaria, the Court of Appeal overturned a decision of the lower court, noting that the distribution should be based on the contribution made by each party.
Initially, the court ruled that properties acquired during the marriage should be shared equally.
The survey shows that although the fraction of married men who own homes and agricultural land jointly with their spouses increased to 18.4 percent, it was much lower than that of women, which rose to almost half from 31 percent in 2014.
Moreover, the proportion of married women who own homes and agricultural land alone has fallen sharply, reflecting a widening of gender gaps at a time women are becoming economically empowered.
The KNBS data shows that married women were more generous with their assets, with the fraction that owns homes and land alone dropping in the review period while those in joint ownership with their spouses shot up.
The percentage of married women who owned homes alone dropped from eight percent in 2014 to 2.5 percent last year.
The survey found a similar trend in ownership of agricultural land where sole ownership among married women dropped to 1.6 percent from seven percent eight years earlier.
The survey further shows that the proportion of married women who own homes and agricultural land fell sharply between 2014 and 2022.
Dr Joy Kiiru, an economics lecturer at the University of Nairobi, said the reduction in the fraction of women who own homes and agricultural land alone speaks of economic disempowerment, with a lot of men not bothering to include the names of their wives in their properties.
“As women become more empowered they are likely to contribute more to their homes, and in a patriarchal society the property is more likely to be jointly owned or owned by the husband,” said Dr Kiiru.
At the policy level, she said, there is a need to sensitise and empower women to own property on their own, noting that it can play a role in reducing gender-based violence.
“Now, you can’t harass me in my own house,” said Dr Kiiru.
The survey noted that, for women, ownership of assets may provide protection in case of “marital dissolution or abandonment, positively influence their position in their homes, and decrease their vulnerability to various forms of violence or discrimination.”
