Throw out law on sharing of family wealth in divorce, Fida urges judge
Women lawyers have gone to court seeking changes to a law that outlines how family property should be shared when couples divorce.
The Federation of Women Lawyers-Kenya (Fida) has sued the Attorney-General and want the court to declare that Section 7 of the Matrimonial Property Act is invalid and goes against the Constitution.
The section provides that matrimonial property should be divided based on the contributions of each individual spouse.
However, Fida wants spouses to share matrimonial property equally at the end of their marriage, irrespective of how much each contributed in its acquisition.
Fida also wants the court to issue an order compelling the AG to publish a Statute Miscellaneous Amendment Act within 30 days of delivery of judgment deleting the contested section.
“Ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce or their marriage is otherwise dissolved,” says the organisation, in its petition papers.
The case is likely to generate public interest, given the kind of debate the law generated when it was first introduced in Parliament in 2013. It also comes at a time when the country is seeing a surge in divorce cases.
A total of 1,246 divorce cases were filed in court between 2010 and 2015, translating to an annual average of 249 a year.
In April, the Court of Appeal set a precedent in matrimonial property disputes when it denied a woman a share of her former husband’s hidden assets.
Appellate Judges Wanjiru Karanja, Mohammed Warsame and Festus Azangalala upheld an earlier decision of the High Court, which had initially been made in favour of businessman Andrew Munene Gachengo.
The Court of Appeal allowed Mr Gachengo to keep the assets he had independently acquired and concealed from his estranged wife, Ms Mary Goretti Nyambura Kanyi.
“The record does not show that (Ms Kanyi) demonstrated to the satisfaction of the court that her contribution towards other family expenses, in some way, had enabled Mr Gachengo meet his obligation to the seller of the said property and to the mortgage company,” said the Appeal Court judges.
Mr Gachengo bought the property without any financial contribution from his wife, who did not even have knowledge of the property during their marriage.
The Matrimonial Property Bill of 2013 was extensively debated and Fida was an active and eager proponent of its passage into law as initially drafted. The Bill was subsequently enacted on December 24, 2013, to provide for the rights and responsibilities of spouses in relation to matrimonial property, and for connected purposes.
However, Fida has now said that through its network of lawyers and female clients, it has received numerous concerns of certain provisions of the Act and their constitutionality, in particular Section 7, which provides that “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved”.
While the definition of contribution has been expanded to include non-monetary contributions, the bulk of the property belongs to the spouse who has made monetary contributions and has proof of the same.
PREJUDICE TO THE WIFE
“This legal provision leaves at a distinct disadvantage the married women who contribute to acquisition of their matrimonial properties but have no tangible proof of the same,” argues Fida. This, says the lawyers’ lobby, “serves to disenfranchise and disempower women economically.”
However, in responses filed in court, Attorney-General Githu Muigai has urged the court to uphold the precedent set by courts in other decisions, where it was held that there is a general presumption that every Act of Parliament is constitutional and the burden of proof lies on any person who alleges otherwise.
Prof Muigai filed the response through the chief litigation counsel, Mr Mwangi Njoroge.
“The court had previously also held that it is not the place of the courts to question the legislative wisdom of Parliament, for Parliament does not legislate in a vacuum and there is a presumption that it knows the needs of its people while legislating; hence the burden of proof on the part of the petitioner must be discharged,” says Mr Njoroge.
He has maintained that the days of considering women as only capable of being “housewives” who cannot in any other way contribute to acquisition of property other than by baby-sitting and other house chores are long gone.
“Men are also marrying women who are more economically empowered than them and, logically, there is nothing to prevent this. There is, therefore, a fatal flaw in Fida’s insistence on ‘prejudice to the wife’ while disregarding the similar circumstances of a jobless husband,” says the State counsel in his papers.
Previous court decisions have also held that the role of the courts is to interpret and declare the law, and that the doctrine of separation of powers prevents them from amending the Constitution.
“From the foregoing, it is without doubt that the power to make laws is reposed on Parliament, and as such the order sought by Fida is not available in this suit,” says Mr Njoroge. “It is the mandate of Parliament to enact that Bill into law in the manner that they deem fit.”