Property Rights In Marriage

Property Rights In Marriage

By Madina Chege,

A Court of Appeal judge has said that although the Constitution recognizes equality between a man and a woman in marriage, this does not guarantee 50-50 sharing of matrimonial property. Justice Patrick Kiage, while delivering a judgment in an appeal where a separated couple was fighting over property, said that once their love life is over, each marriage partner should walk away with the share of what they contributed. He noted that marriage is not a ticket to equal sharing of matrimonial property. The court ruled that if one partner invested nothing in marriage, they should not ask for a slice of what was invested by the other partner on the basis of love. “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. The court ruled that sharing matrimonial property after a marriage hits the rocks does not have a fixed formula in the law. “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,” he said. The judge, 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. Kiage said each case should be determined in terms of how each party contributed and an appropriate percentage of the matrimonial property apportioned. “No 50-50 philosophy would grant such a party any right to property acquired without their contribution and notwithstanding their negation or diminution of the efforts towards its acquisition,” he said. The judge made the ruling alongside justices Philip Waki and Festus Azangalala.

Looking at that ruling there is so much hypocrisy and irony. The sentiments in the ruling are shared by many men across the board who think their wives should not have a share on their property in the event of a divorce. A friend recently posted a story of a woman who has since gone into depression after being kicked out on the street penniless with her three kids because her husband has married a second wife. Being a housewife the woman ended up distributing her kids to her relatives and friends since she had nowhere to go. She had been married for a good number of years bearing in mind the eldest child was in high school. What happens to such a mother in such a case? Sometime back we also saw a case where a former husband of a TV star kicked her out of her matrimonial house by taking a loan against their house and failing to pay up the loan intentionally.

That poses my question, how do we compensate housewives for their duties in marriage now that Judge Kiage ruled that if one partner invested nothing in marriage, they should not ask for a slice of what was invested by the other partner on the basis of love. How do you measure housework? How do you measure matching pair of socks for 50 years and taking water to the bathroom for 20 years?  How do you measure sacrificing ones ambitions to raise children, and why should kids have to suffer just because their parents are separated and the father has spotted a hotter female?

It is in the light of such biased rulings that we have seen the rise of the Kiambu black widows. It is said most properties in Kiambu are owned by widows whose spouses died in mysterious circumstances. It is believed that these women plan for the death of their husbands because of their philandering ways and for fear of being kicked out of their matrimonial homes in favour of ‘yellow-yellows’. The law should protect all parties in a marriage and none should feel that they should stay in a bad marriage for the economic benefits.