Court of Appeal affirms check on spouses eyeing riches in marriage

The Court of Appeal has affirmed a High Court judgment that spouses who give nothing to a marriage should walk away empty-handed.

The second-highest court in the land dismissed a case filed by the Women Lawyers lobby - Federation of Women Lawyers Kenya (FIDA-Kenya), which sought to outlaw sections of the Matrimonial Properties Act requiring women to prove their contribution to a marriage to get a share of wealth generated in a marriage.

Court of Appeal judges Gatembu Kairu and Aggrey Muchelule unanimously agreed that Section 7 of the Act is rather empowering women as it factors in either monetary or other contributions to a marriage to determine the percentage each spouse gets.

“It makes sure that whatever contribution each spouse brings to the marriage by way of effort and work, whether it be in monetary form or in non-monetary form, is dignifying and ultimately counts when the marriage ends. If the courts may have, sometimes, not favorably recognised, and properly assessed, the non-monetary contribution of the women in the marriage,” the bench headed by Justice Kairu ruled.

Justice Kairu and Muchelule observed that every effort by either man or woman in a marriage must count in the end. “None of the parties can bring into the marriage the oppressive economic, cultural or societal values that, before the promulgation of the Constitution, defined marriage relationship,” they said.

FIDA-Kenya argued that Justice John Mativo (now a Court of Appeal Judge) erred by failing to find that the section violates on married women’s rights to own property after the marriage ends, since they must prove their contribution to acquire it.

According to FIDA, the law placed an advantage to a man who can show how his money was spent to a marriage as compared to a woman, as there is no scale for determining non-monetary contribution, but it is left to the court to determine.

The women lawyers lobby argued that it is discriminatory as the Constitution envisions equality in marriage, hence, sharing of the matrimonial wealth should be 50:50.

The section provides that each party should get what they contributed in a marriage. The women lawyers argued it offends Section 45(3) of the Marriage Act which provides for equal rights at the time of the marriage and in divorce. At the High Court, Justice Mativo also opened the door for men to earn a share from their wives on divorce by holding that the name spouse does not mean women only should benefit.

Kenya’s tradition is that the man is the breadwinner and he provides for the family, and the woman as a helper. It is also thought that women should get what men have looked for.

According to the judge, if the woman earns more than a man, and he is the one who fends for the family, his contribution to what she had during the marriage should be also shared. “On the question of alleged discrimination, the impugned section talks of parties to a marriage. My understanding is that it means both men and women and it does not specifically refer to women. There will be situations where women will be earning more than men in acquiring matrimonial property,” he ruled.

He continued: “The provision clearly recognises non-monetary contribution by either spouse. Non-monetary contribution not limited to women alone. It applies to both men and women.”

At the centre of the dispute is how the courts can measure non-monetary contributions to give a fair share of the property. Section two of the matrimonial Act provides that courts ought to weigh spouse’s contribution in terms of domestic work and management of their matrimonial home, child care, companionship, management of family business or properties and farm work.

FIDA argued that the law provided a yardstick for men to walk away with the lion share of what was gathered in the marriage as no one can equate how well or bad did a woman feed the man and his family or ironed their clothes.

The lobby also argued that judges cannot translate child labour pangs and the trouble women go through while siring children

to marriage wealth or even the love and the counsel she gives man each day. “The greatest injustice which, in my view forms the basis of the petitioner’s fear as I understand, has been failure to reward and recognise a spouse whose contribution to the family has been or through being a home maker, performing hose hold chores, bearing and raising children, historically these were for the women,” the judge noted.

The judge relied on two verdicts, one by Court of Appeal judge Patrick Kiage and another by the High Court judge Francis Tuiyott to find that marriage is not a business venture for those who want easy and quick riches.

Justice Kiage, in a seven-page ruling, said it was bizarre to think a married woman’s or man’s legal rights equated to a permit to 50 per cent of the wealth without considering individual contributions

He said the thinking behind equal share in marriage was woven to convert honest people into gold diggers, pleasure lovers and marriage-hopping brides and grooms.

The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50-50 mantra,” said Justice Kiage.

He continued, “It is not a matter of mathematics merely, as in the splitting of an orange in two for, as biblical Solomon found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I do not think that getting married gives a spouse a free-to-cash cheque bearing the words ‘50 per cent’.

Justice Tuiyott in a case where a woman was demanding 50 per cent of their marriage’s worth said that it would be oppressive for a spouse who gives more in a marriage to give half of what they acquired.