1. RESEARCH QUESTION
Does section 7 of the Matrimonial Property Act on division of matrimonial property based on contribution towards its acquisition upon dissolution of marriage conform to the Constitution?
1.1. BACKGROUND INFORMATION
The Constitution enunciates that the parties to a marriage are entitled to equal rights at the time of the marriage, during the subsistence of the marriage and at the dissolution of the marriage . Section 7 of the Matrimonial Property Act, on the other hand, favours an approach that takes into account the contribution of either spouse towards the acquisition of property during the distribution of matrimonial property upon the dissolution of a marriage . The aforementioned provision of the Act rather than treating spouses identically, i.e. 50:50 sharing distinguishes proprietary entitlement of spouses on the basis of contribution to acquisition of matrimonial property. The determination of whether the aforementioned departure from identical treatment by the impugned provision runs contra the equality provisions of the Constitution and amounts to discrimination forms the authentic fabric and architecture of the analysis in this research paper.
2. THE LEGAL NORM (MAJOR PREMISE)
Article 10 of the Constitution of Kenya, 2010, which enunciates the national values and principles of governance provides that during the enactment, application or interpretation of any law, state officers, state organs and public officers ought to uphold equality. Article 27 (3) of the Constitution of Kenya, 2010, on equality and freedom from non-discrimination is to the effect that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Article 45 of the Constitution of Kenya, 2010, states that the parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
Article 2 (6) of the Constitution of Kenya, 2010 is to the effect that all treaties ratified by Kenya form part of the laws of Kenya. Article 3 of the Banjul Charter, Article 26 of the International Covenant on Civil and Political Rights all buttress the issue of equality before the law and freedom from non-discrimination. Article 7 of the Maputo protocol states that state parties shall enact appropriate legislation to ensure that women and men enjoy the same rights in the case of dissolution of marriage.
In the case of Agnes Nanjala William vs. Jacob Petrus Nicolas , the Court of Appeal observed that Article 45 (3) of the Constitution gives parties to marriage equal rights in marriage before, during the subsistence and after the marriage is dissolved. The court proceeded to argue that Article 45 (3) of the Constitution is perhaps a constitutional statement of the principle that marital property is shared 50-50 in the event that a marriage comes to an end. In petition number 164B of 2016 , it was argued by the petitioner i.e. the Federation of Women Lawyers that it is important to consider the legislative history of the statute. Before the enactment of the Matrimonial Property Act specifically, in the cases of Essa vs. Essa and Nderitu vs. Nderitu courts divided property 50/50 between spouses and did not consider the contribution. The courts decided on equality in division in the absence of a statute to clearly set out the principles on the division of matrimonial property.
In light of the foregoing, it is unequivocal that the Constitution considers that marriage is a union of equals and no spouse is superior over the other. The Constitution does not contemplate a form of distribution of matrimonial property upon the dissolution of marriage that permits a scenario whereby the bulk of the property will belong to a spouse who has made monetary contribution to its acquisition and can prove the same or one that permits the disadvantage of a spouse who has contributed to the acquisition, preservation or improvement of matrimonial property, in most circumstances, non – monetary aspects such as child care or companionship or even the management of family business and has no tangible proof of the same.
3. RELEVANT FACTS (MINOR PREMISE)
The Matrimonial Property Act, 2013 was enacted pursuant to Article 45 (4) of the Constitution and therefore in furtherance of the purport and spirit of the Constitution to ensure there is gender equality in the institution of marriage in the context of rights and responsibilities of spouses at the time of the marriage, during the subsistence of the marriage and at the dissolution of the marriage. Section 10 of the Matrimonial Property Act is couched in the same spirit of equality in responsibility of spouses for any liability incurred during the subsistence of the marriage. it states that any liability incurred during the subsistence of the marriage and for the benefit of the marriage shall be shared equally between the parties to the marriage.
However, section 7 of the Matrimonial Property Act whose constitutionality is subject of the analysis in this paper favours an approach that considers the contribution of parties to the marriage towards the acquisition during the distribution of matrimonial property upon the dissolution of the marriage. The bigger the contribution, the bigger the portion distributed to a particular spouse. Property is divided according to what parties deserve and not 50:50 . Section 2 of the Act as read with section 9 of the Act provide that contribution includes non-monetary aspects such as child care and farm work or even management of business and improvement of property bought by another spouse which does not become matrimonial property.
Therefore, division of matrimonial property under Act is in accordance with the contribution of the parties, including non-monetary aspects rather than 50:50 mathematical/identical distribution irrespective of contribution.
4. APPLICATION
Inasmuch as the issue of division of matrimonial property has remained hotly debated and to the man on the Clapham omnibus, largely mysterious, it is certain that as a result of the patriarchal nature of the Kenyan society, women had for a long time found themselves disadvantaged by the law on the division of matrimonial property upon the dissolution of marriage. The enactment of the Matrimonial Property Act has however been a huge step forward to the realization of equality in rights and responsibilities of spouses at the time of the marriage, during the subsistence of marriage and at the dissolution of marriage. The Act established centralized principles on the division of matrimonial property so that there is some form of uniformity in case law jurisprudence on the issue.
The pertinent issue however, is whether section 7 of the Act conforms to the equality provisions of the Constitution. Aristotle recognized two kinds of equality, numerical equality and proportional equality . A form of treatment of persons or consequent distribution is equal numerically when it treats persons as indistinguishable and in the context of division of matrimonial property this entails 50:50 sharing of matrimonial property. Proportional equality, on the other hand and in the context of division of matrimonial property, entails distribution on the basis of contribution of parties to the acquisition of the property.
It is not unequivocal whether the Constitution alluded to numerical or proportional equality. It is however axiomatic that the division of matrimonial property under section 7 of the Act is not, (and definitely by its very nature cannot be) a precise mathematical exercise merely as the splitting of a mango into two. Section 7 of the Act was couched based on the predisposition that the Constitution alluded to proportional equality. The text of the Constitution declares that marriage is a partnership of equals. No spouse is superior over the other. However, the Constitution does not in any way command 50:50 sharing of matrimonial property or in any way seem to suggest that equality of parties translates to equal proprietary entitlement. The rationale seems to be that under the Constitution, a marriage is not an avenue to early riches by men who would rather reap from rich women or women who see in rich men as an adieu to poverty.
As has been established above, departure from identical treatment does not offend equality before the law or amount to discrimination. The Matrimonial Property Act considers non-monetary aspects of contribution such as farm work, child care and management of family business. This is aimed at ensuring that both spouses, especially women who make a lot of non – monetary contribution to the success of a family get the share of matrimonial property they deserve upon the dissolution of marriage. However, in as much as the impugned provision recognizes non-monetary aspects of contribution, the Act does not specify and criteria for the quantification of non – monetary contribution. Justus Mulei Mutuku, a magistrate in Kilifi magistrate’s court stated that there is no uniformity across decisions of the High Court and appellate courts on the quantification of non-monetary contribution. Consequently, non-monetary contribution can be undervalued and as such women who most of the times are the ones who partake in most aspects of non – monetary contribution can end up not receiving the share they deserve of matrimonial property upon the dissolution of marriage.
In addition to the issue of quantification of non – monetary contribution, factors such as discriminatory customary practices, for example, under the Kisii customs, a woman is not allowed to have her name included in the title of any property , minimal awareness of rights by women and inadequate access to relevant information impede women from having their proportional share of matrimonial property distributed to them upon the dissolution of marriage.
In fact, evidence found on a survey by the Goerogetown University Law Center enunciates the fact that women face numerous obstacles during the subsistence of marriage and that their burden becomes insurmountable if they get divorced as they leave marriage with no property and also have to leave their children behind . This forces women to stay in abusive relationships because they do not want to leave everything that they might have invested in the marriage behind.
5. CONCLUSION
This paper concludes that the section 7 of the Matrimonial Property Act is not unconstitutional. In as much as it departs from identical treatment of couples i.e. 50:50 sharing of matrimonial property in favour of an approach that takes into consideration the contribution (including non – monetary) of the parties towards acquisition which as has been established above is also a form of equality, the Constitution itself does not seem to command 50:50 sharing of matrimonial property upon the dissolution of marriage or in any way to suggest that equal rights translates to half of the property. This paper concludes this beginning from the view that all things being equal, and both parties having made equal effort towards the acquisition of matrimonial property, the process of determining entitlement must lead to a distribution of 50:50 or thereabouts and this cannot be otherwise.
6. OUTLOOK
This paper posits the catastrophic effect that factors such as the unavailability of a standard set of principles on quantification of non – monetary contribution, discriminatory customary practices and minimal awareness of rights have on the constitutionally entrenched rights of women that empower them with the ability to rise from the vulnerable position that social rules of behaviour have put them.
This paper recommends the need to re-interrogate the issue of division of matrimonial property to put into consideration the enormous input of women in terms of child birth, child care, taking care of the home, cooking and other roles in the house. This paper recommends the amendment of the Matrimonial Property Act to include a standard set of principles for the quantification of non-monetary contribution so as to be able to determine with precision the share of matrimonial property that a party can claim when the marriage is terminated. This paper also recommends public education to ensure that women are well apprised with their rights and to ensure that they are informed that retrogressive and subversive customary practices should not impede them from enforcing their right to a proportional share of matrimonial property upon
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