- Legal experts have charged that Justice Teresia Matheka has taken to judicial activism rather than strict interpretation of the law to set case law contradictory to matrimonial property legislation.
- The contractual nature of marriage only ever becomes obvious during separation or divorce otherwise it is based on consent, goodwill and mutual understanding that is culturally assumed to last a lifetime.
- Disputes on ownership of marital property are hard nuts to crack considering marriage is often celebrated while parties are immature, naïve, obligated by norms and oblivious to the nuptial vagaries post honeymoon.
A recent High Court ruling over a matrimonial property dispute has set many a tongue wagging. The case involved an estranged husband pitted against his stay-at-home ex-wife who based his case on the Matrimonial Properties Act that allows spouses proportional ownership of their financial contribution to jointly owned property acquired after marriage.
In a case of a housewife whose financial contributions are probably zero to nothing, the law if strictly applied would mean that the husband owns all the matrimonial assets. In a landmark ruling that feminists have hailed as progressive, the judge asserted that it was unfair for courts to rule that housewives have no significant contribution to the financial progression of families as they offer full-time even professional services at home.
Visible income, argued the judge, is not the only benchmark to use in evaluating financial value and that taking care of domestic matters is a significant contribution.
Men, under the so-called “The Men’s Conference,” are whining.
Legal experts have charged that Justice Teresia Matheka has taken to judicial activism rather than strict interpretation of the law to set case law contradictory to matrimonial property legislation.
Labor experts have questioned the formula used to determine the contractual basis of qualifying a housewife as an employee.
Obvious questions arise from this assertion like, ‘Who, therefore, is the housewife’s employer and do the provisions of the Employment Act around labor relations, remuneration, unionization, code of conduct, performance management and disciplinary procedures apply?’
Gender equality activists conversely argued that what is good for the gander is good for the goose. With unemployment numbers in the double digits, a significant percentage of stay-at-home fathers are taking on domestic roles.
The contractual nature of marriage only ever becomes obvious during separation or divorce otherwise it is based on consent, goodwill and mutual understanding that is culturally assumed to last a lifetime.
The reality though is that many couples eventually renege on their vows and unless they have signed prenuptial agreement, division of marital property becomes bitterly contentious at separation.
Qualifying marital duties as employment is one way to consider the contribution of each spouse but this would have to include the equally important unpaid jobs husbands perform as askaris, shamba boys, messengers, clerks, drivers, porters, cooks, dishwashers, tutors, therapists, barbers, gate keepers, plumbers, cleaners, project managers, electricians, and roofers in their households.
The good judge failed to acknowledge that outside their regular nine-to-five jobs, men have myriad domestic duties they perform.
Regrettably, on marital property rights nobody listens to the other. The feminist says all and sundry is fair game in a perpetual tit-for-tat, arguing that because men have had the upper hand from creation, such rulings are fair because they equal the scales.
The faithful say marriage is sacrosanct and made in Heaven and, therefore, both parties must never give in to the sinful temptation of considering the unfairness of the contract of marriage. The traditionalists outlaw and stigmatize any consideration of the rights of women in marriage. And the law written predominantly by male chauvinists is predictably silent on the plight of women.
Disputes on ownership of marital property are hard nuts to crack considering marriage is often celebrated while parties are immature, naïve, obligated by norms and oblivious to the nuptial vagaries post-honeymoon. To cure this requires clarity at entry into the marital contract. Prenuptial agreements must become a legal standard of the ceremony of marriage so that as consenting adults we know what we are getting ourselves into from the get-go.
The courts would also benefit as it would become needless for them to pass decrees nullifying marital laws retrospectively as in the case of Judge Matheka. If companies are required to have standard articles of incorporation, marriages should as well to secure the material and other interests of both bride and groom from first kiss.
Dr Nathan Wangusi is an author, environmentalist and engineer, [email protected]