Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya's Marital Asset Division

Abstract

Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, it provides that monetary contribution and non-monetary contribution are the only factors for dividing marital property on divorce. The Kenyan courts have issued contradictory decisions on the weight of nonmonetary contribution in long-term and short-term marriages. Without guidance on the weight of non-monetary contribution during divorce proceedings, the courts have left potential litigants, especially women, to navigate the unsettled waters of marital disputes in the legal system. Kenya’s Parliament should take steps to clarify the legislation, develop regulations on the weight of non-monetary contribution, and provide statutory factors for consideration during division of marital property. This will ensure that courts meet the overriding objective of achieving a fair outcome in marital property disputes. Because of the constitutional guarantee of equality, the courts must begin analysis of property division by assuming each spouse is entitled to half of the marital property.