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End of an era or error? a contextualized analysis of the historical evolution of the law on the division of matrimonial property

The law on matrimonial property has experienced massive progress. First things first, matrimonial property is made up of matrimonial home(s), 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 marriage.[1] Back in the days, the principle of corveture used to cover each and every issue. The principle of corveture deemed married spouses as one flesh and blood with indistinguishable legal rights and responsibilities. It further stated that a woman’s property was to be transferred to her husband upon marriage. He gained ownership of all of her real property (land), and while he was unable to sell it without her permission, he nonetheless pocketed all of the proceeds. She gave him full ownership of all of her other assets, including her future profits. A married woman was not allowed to establish a will, enter into a contract, or pursue or defend a lawsuit on her own under coverture. For almost 700 years, coverture was a common-law rule that is partially still in effect today.[2] A case in point is the inheritance of a surname by a woman upon marriage in addition to the testimonial privileges of a spouse.[3]

The family law on division of matrimonial property thereafter developed and obtained its authority in the statute. Of keen interest in the Kenyan context is the Married Women Property Act, 1882 which came into effect on 18th August of 1882 and was applicable in Kenya by virtue of section 3 of the Judicature Act. Its applicability was based on the fact that Kenya did not have equivalent legislation. However, with time the provisions of the Married Women Property Act, 1882 became obsolete due to societal changes. England on its end changed the said act. Kenya followed suit much later and in 2013 the Matrimonial Property act was put in place and its application officially commenced on 16th January, 2014.

The provisions of the Matrimonial Property Act, however, have been subject to multiple controversies. Questions have been raised on whether Matrimonial Property Act, 2013 is in conflict with article 45(3) of the Constitution of Kenya, 2010 which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at the dissolution of marriage.[4] This conflict has been a subject of several litigations and we intend to discuss it in detail later in this article.

Equity versus equality

The interpretation of the article 45(3) has been subject of hotly contested debate. The said article provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of marriage.[5] It is worth noting that Kenyans decided to change the constitution through a referendum in 2010. This happened three years before the assenting of the Matrimonial Property Act, 2013. At the same time, article 2 of the Constitution provides that the Constitution is the supreme law of the republic hence any law inconsistent with the constitution is void to the extent of the inconsistency.[6]

The Matrimonial Property Act was enacted by virtue of article 45(4) of the Constitution to provide flesh to the provisions of the constitution. Section 7 of the Matrimonial Property Act, 2013 provides that ownership of matrimonial property vests in the spouses according to the distribution of the spouses.[7] This provision on the surface of it tends to be inconsistent with the equality envisioned in article 45(3) of the Constitution of Kenya, 2010. Article 45(3) has been interpreted by some scholars to imply the division of the matrimonial property on a 50-50 basis. This was the argument of Federation of Women Lawyers Kenya in Federation of Women Lawyers Kenya (FIDA) v Attorney General & another [2018] eKLR.     

A spouse can as well acquire a beneficial interest in a property that does not form part of the matrimonial property.[8] The party intending to acquire beneficial interest is, however, tasked with the responsibility of proving that they contributed toward the improvement of the property.[9] Contribution at the same time can either be in monetary or non-monetary form. Non-monetary contribution includes domestic work and the management of matrimonial property, child care, companionship, management of family business or property and farm work.[10] Forward-looking Kenyan judges accepted contribution as crucial in the division of matrimonial property even before the Matrimonial Property Act came into effect.  At the same time, courts have accepted for quite some time that both monetary and non-monetary contribution amounts to contribution.

The Court held in Mary Ann Kivuitu vs Samuel Mutua Kivuitu Civil Appeal No 26 of 1985 (unreported) that under section 17 of the Married Women’s Property Act the wife’s contribution should not be limited to monetary contribution only.  The honourable court stated that if a wife remains in the house, prepares food for the family and generally keeps the house going and generally attends to matters which enhance the welfare of the family; surely such a woman is contributing to the family welfare and its assets. The court further held in Ndiritu vs Ndiritu, that bearing children was a form of contribution in determining the wife’s interest in the assets under consideration.  The judge categorically stated that a wife’s contribution and more particularly a Kenya African wife will more often than not take the form of a backup service on the domestic front rather than a direct financial contribution. Court stated that it was incumbent therefore upon a trial judge hearing an application under section 17 of the Act to take into account this form of contribution in determining the wife’s interest in the assets under consideration.[11]

The court was reluctant in Peter Mburu Echaria –vs- Priscilla Njeri Echaria  [2007] e KLR to accept that contribution can either be monetary or non-monetary. It was of the view that there is a need to prove financial contribution for a beneficial interest in property to be acquired. The Court held that for a wife to prove entitlement to property acquired in the course of coverture she needs to prove her financial contribution towards the acquisition of the property. In the present case, the disputed property was not registered in the joint names of the spouse but was rather registered in the name of one spouse. The court concluded that in cases where the spouses have made a substantial but unascertainable contribution, it may be equitable to apply the maxim equity is equality. 

There is no doubt that the judges were persuaded by holdings in foreign jurisdictions. Progressive states such as England had long been recognising contribution and particularly non-monetary contribution in the division of matrimonial property. It was held in Burns v Burns that if there is a substantial contribution by the woman to the family expenses, and the house was purchased on a mortgage; her contribution is, indirectly referable to the acquisition of the house since in one way or another, it enables the family to pay the mortgage instalments. The House of Lords stated in Gissing v Gissing that it is reasonable to apply the maxim equity is equality in a case where there have been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficult to fix. The House of Lords contributed that if it is plain, that the contributing spouse has contributed about one-quarter, it is not helpful or right for the court to feel obliged to award either one-half or nothing. The House of Lords held further that according to the English law of trusts, it is only through the wife’s financial contribution, direct or indirect towards the acquisition of the property registered in the name of her husband that entitles her to a beneficial interest in the property.

However, courts have held at times that matrimonial property ought to be divided on a 50-50 basis. The court held in Agnes Nanjala William –vs- Jacob Petrus Nicolas Vander Goes that article 45(3) of the Constitution applies to matrimonial property and is a constitutional declaration of the idea that, in the case of a divorce, marital property is split 50/50. They appreciated the fact that no recent legislation (Matrimonial property Act) had been passed by parliament to govern matrimonial property. The court ruled that Echaria v. Echaria was bad law since it was in conflict with article 45(3) of the Constitution of Kenya 2010. The court stated in Kivitu v. Kivitu that in all the cases involving disputes between husband and wife over beneficial interest in the property acquired during the marriage which had gone to the Court, the court had invariably given the wife an equal share.

Matrimonial Property Act

The coming into force of the Matrimonial Property Act, 2013 has been a life saver. Justice Kiage opined in PNN v. ZWN that the marital equality recognized in the Constitution does not mean that matrimonial property should be divided equally He was of the view that, the procedure of assessing entitlement may result in a distribution of roughly 50:50 if all other factors are equal and both parties have contributed equally to the purchase, preservation, or enhancement of the family property. That is not to suggest, however, that equality of parties equates to equality of ownership entitlement as a matter of doctrine or principle. He stated further that the sad, horrible business of dividing and distributing divorce property must still be handled on the basis of fairness and conscience, not a romantic clinging to the 50:50 mantra, when the ship of marriage hits the rocks, flounders, and sinks. As Solomon discovered that fairness is not only a mathematical issue, as in splitting an orange in half since simply splitting a contested object of affection, ambition, or desire into two equal pieces does not serve justice.

Spouses need to work for them to be entitled to matrimonial property. Kiage , J rightly stated in PNN v. ZWN that it would be absurd to think that the Constitution somehow turns the state of coverture into a laissez-passer, a ticket to fifty percent riches regardless of what one performs in that marriage. He further held that there is not’t a harmful doctrine that he could think of that aims to turn normally honourable individuals into gold-digging, sponsor-seeking, pleasure-loving, and, regrettably, divorce-hoping brides and grooms. He held that if we are to argue that the Constitution automatically grants a spouse a half-share, whether or not he or she works for it, we run the risk of abandoning the values that encourage couples to collaborate in order to improve the family’s financial situation. He concluded that he does not believe that getting married grants a spouse a blank check with the words “50%” on it.

 The High Court of Kenya in UMM v. IMM stated that couples should receive what is due to them when a marriage is dissolved. To determine what one deserves, one must take into account both financial and non-financial contributions. A ruling that Article 45(3) mandates a 50:50 split automatically could endanger the institution of marriage. It would provide a chance for a fortune seeker to enter into a marriage, sit back without providing any financial or non-financial support, strain the relationship, and wait to reap half of the marital estate. That is undoubtedly unfair to the spouse who contributes more. That is not the kind of equality that Article 45(3] contemplates. This is the right position that ought to be followed.

Just recently, the Kenyan Supreme Court made a judgment, regarding the division of Matrimonial Property, upon termination or dissolution of a marriage. [12]The decision made by the highest court in Kenya is that married couples are not automatically entitled to equal shares of Matrimonial Property, in case of dissolution of a marriage. The case before the honorable court, which led to the precedential ruling of the Supreme Court, concerned one Joseph Ombogi Ogentoto, who in this case was the respondent and Martha Bosibori Ogentoto, who was the applicant. Although Article 45 of the Constitution of Kenya, 2010, guarantees spouses to equal rights of property at the time of marriage and during dissolution of a marriage, the court found that such equality does not mean redistribution of property rights, and thus, that Article 45 (3) does not entitle a former spouse to 50% share of assets due to the mere fact of marriage.

Article 45 (3) of the Constitution seems to be rather vague on whether the equality referred to herein refers to the equal contribution of 50:50 at the division of matrimonial property or whether it shall be based upon the direct or indirect contributions during the marriage. The Supreme Court, in trying to clear the vagueness, held in the case of Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto that; the distribution of property is solely based on individual contributions, a decision we wish to second due to the fact that it is both fair and reasonable. Sharing of matrimonial property on a 50-50 basis may result in unintended injustice to one party and unmerited benefit to the other.

It would be so unfair, for one spouse to contribute one quarter or even make no contributions at all, then demand half of the share of the property at the time of the dissolution of the marriage. It is probably due to this very reason amongst many others, that the courts have established judicial precedents to deal with the issue of the ratio of contribution. The good judge, Justice Odunga, in his decision in the case of EKTM v ECC [2021] eKLR, and acknowledging Section 7 of the Matrimonial Property Act, stated that; “Matrimonial property will be divided between the spouses in accordance with their respective contributions towards the acquisition. In that event, there is no presumption of 50:50 ownership of the said property. The 50:50 presumption is only to be invoked where there is evidence that both spouses contributed towards the acquisition of the property and there is no way of determining each spouses’ contribution thereto”. [13]

On matters of Contribution, we ought to consider certain instances when determining the ratio of contribution. For instance, a case where the husband is not participate in  any income generating engagement but takes part in other non-monetary activities, or where the wife, bears the burden of childbearing, a task which the man can hardly assist in doing, and directs all her attention to taking care of the kids, what then happens in such cases? In such scenarios, we believe there is no way that the apportionment of contribution can be automatically 50:50, that each case must be decided on its own facts as was appreciated by the Court of Appeal in the case of TKM v SMW [2020] eKLR  where it stated that:’We bear in mind the edict in Muthembwa v Muthembwa [2002] 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in the acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.’[14] In cases where it is clear that one spouse has not made any contributions, then the courts should be courageous enough to state so.

We ought also to appreciate the meaning of ‘Equality in marriage’ as was defined by the court in MEK v GLM [2018] eKLR.[15] That equality in marriage is not a principle to be applied blindly nor is it intended to encourage dependency by one spouse. It is a situation where each party makes a contribution. In echoing the decision of the Supreme Court in the recent ruling, and giving account to different precedents, our advisory opinion in the apportionment of contribution is that it should be subject to the principle of fairness, such that, each case will be decided on the basis of its own facts and that each spouse will get a fair portion of the property based on their contribution, whether monetary or non-monetary.

The other reason to discourage the automatic 50:50 sharing is that it would lead to many ‘false marriages’ marriages as was elucidated by Justice Kiage in  PNN V. ZWN. Whereby, people will be entering into the institution of marriage with ill intentions of acquiring shares of the property. Many people will be fortune seekers in marriages, to mean that, they would sit back fold their hands, make no monetary or non-monetary contributions, and expect to have half of the share of the property in case of a divorce. It is possible that some would even go to an extent of killing their spouses so as to inherit half of the property. This would be oppressive to the spouse who makes the bigger contribution, and such is not the essence of equality.

The Supreme Court in the case of Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto, established that a party must prove contribution to enable a court to determine the percentage available to it, at the distribution of matrimonial property, as the test to determine the extent of contribution is on a case to case basis.

Criticisms on the question of proving contribution and on the division of matrimonial property

Proving financial contribution at times can be a big challenge. We all know that most people enter marriages with the long term goal in mind. It is, therefore, too much to ask couples to keep a record of every financial contribution that they make towards the acquisition of the property. There are other properties that even when the financial contribution is proved the division of such property may be subject to contention. Such properties include matrimonial homes. We recognize the long judicial practice of valuing the matrimonial home and selling it or asking one partner to pay the other spouse half the value. Unfortunately, there is too much emotional attachment to matrimonial homes hence the court should not just consider the financial aspect alone. Questions may also be raised from a feministic point of view of what the court should do in cases where the husband had absolutely disallowed the wife to have her personal property registered in her name.

Non-monetary contribution

The court has been clear on the way forward, however, more guidance needs to be given in so far as the non-monetary contribution is concerned. This is due to the fact that it is relatively difficult to equate non-monetary contribution to financial terms hence rewarding the non-monetary contribution. It is our considered view that Parliament should amend the Matrimonial Property Act so as to make the court’s task easier. At the same time ,we vouch for partial maintenance of judicial discretion such that judges should have the freedom of deciding each case on its own merits while following the law.

Substantial but unascertainable contribution

In certain instances, contribution may be difficult to prove. This may be due to the absence of material record of both monetary and non-monetary contribution. In such cases we suggest that the maxim equity is equality should be applied by the courts to unlock the deadlock. It is well known that the courts intend to solve disputes amicably and ensure that justice has been served to all the parties. It is only fair enough to divide the disputed property on 50:50 basis where contribution is substantial but unascertainable.

Islamic marriages

Section 3 of the Matrimonial Property Act states that: ‘A person who professes the Islamic Faith may be governed by Islamic law in all matters relating to matrimonial property.[16] Islam to some extent does not recognize matrimonial property; its property is separate unless stated and proven that it is jointly acquired. With regards to Matrimonial Property, Muslims are governed by Sharia Laws.

Under the Islamic religion, concerning the distribution of property, the sharers are 12 in number. They include; husband, wife, daughter, daughter of a son, father, paternal grandfather, mother, grandmother on the male line, full sister, consanguine sister, uterine sister and uterine brother. In seeking to critique the number of people entitled to a share of matrimonial property: A nuclear family basically consists of a mother, father and children. Why then should extended members be allowed to enjoy property that they did not contribute to its acquisition, yet they have their own nuclear families? It is also unfair that shares taken by each sharer will vary in certain conditions. For instance, a wife takes one quarter of the share in a case where a couple is without lineal descendants and an eighth share if otherwise (in the case of succession to the wife’s estate) takes half a share in a case where the couple is without lineal descendants and one quarter if otherwise, and if the deceased had left behind sons and daughters, then the daughters cease to be sharers and become residuary instead.

Sharia laws have proven to be disadvantageous mostly to the women as expressed below;

-The males are given a right to get a double share of inheritance compared to the females, due to the mere fact that they take over from their fathers in providing and taking care of the family in case of the father’s absence, which includes but not limited to death.

-The wife’s contribution to the matrimonial property is ignored and is not recognized as part of the contribution

-In case of barrenness, property rights vest in the husband’s mother in any case he dies.

It is therefore our humble and respectful suggestion that these Islamic laws should be repealed and that Muslims should be provided for in the Matrimonial Property Act, for the sake of equality in marriage.

Polygamous marriages

A polygamous marriage clearly shows the unfairness that is present in the 50-50 basis of sharing matrimonial property. In a polygamous marriage, one wife may petition for the dissolution of that specific marriage. Once the divorce has been settled, if parties are to receive the matrimonial property on a 50-50 basis, then both the husband and the wife or wives who did not petition for the divorce will be affected. One wife will be entitled to one-half of the entire property living the rest with just another half to share amongst themselves. This is the peak of injustice that the 50-50 sharing of matrimonial property exposes the parties to.

Conclusion

We are fully convinced that contribution is the way to go, in so far as the division of matrimonial property is concerned. We take notice of Section 2 of the Matrimonial Property Act which provides that contribution can either be in monetary or non-monetary form. That is and should be the right position. However, in cases where there is a substantial but unascertainable contribution, the maxim, equity is equality should be applied, such that matrimonial property should be divided on 50:50 basis. This, however, should be subject to judicial discretion with each case being decided upon the facts and on its own merits.

Rita Michelle Kerubo Nyaigendia is a determined law student who is ambitious on changing society by doing little things. ritanyaigendia@gmail.com

Michael Omondi Odhiambo is a strong believer that the law can be used as a tool for social engineering. Politics and law to him are inseparable myllomosh@gmail.com


[1] Section 6 of the Matrimonial property Act, 2013.

[2] Auchmuty, R. (2016) married women and the law: Coverture in England and the Common Law world ed. by Tim Stretton and Krista J. Kesselring (review), University of Toronto Quarterly. University of Toronto Press. Available at: https://muse.jhu.edu/article/632775/pdf (Accessed: February 15, 2023).

[3] Law, M.F. (no date) The Coverture Doctrine & Family Law, Moshtael Family Law Orange County. Moshtael Family law. Available at: https://www.moshtaellaw.com/blog/2019/october/the-doctrine-of-coverture-family-law/ (Accessed: February 15, 2023).

[4] Article 45(3) of the Constitution of Kenya, 2010.

[5] Ibid.

[6] Article 2(1) and 2(4) of the Constitution of Kenya, 2010.

[7] Section 7 of Matrimonial Property Act, 2013.

[8] Section 9, Matrimonial Property Act, 2013.

[9] Ibid

[10] Section 2 of the Matrimonial Property act, 2013.

[11] Ndiritu v Ndiritu (Unreported)

[12] Joseph Ombogi Ogentoto v Martha Ogentoto

[13] EKTM v ECC [2021]

[14] TKM v SMW [2020]

[15] MEK v GLM [2018]

[16] Matrimonial Property Act

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Michael has an unbeatable interest in research and is a keen and enthusiastic follower of emerging jurisprudence. He can be reached at Myllomosh@gmail.com