The Court of Appeal has dismissed a case filed by the Federation of Women Lawyers Kenya (FIDA-Kenya) challenging section seven of the Matrimonial Property Act, 2013, which bases the division of matrimonial property on each spouse’s contribution.
FIDA-Kenya, in Civil Appeal No. 238 of 2018, had sought to have Section 7 of the Act declared unconstitutional, arguing that it violates the principle of equality in marriage as guaranteed under Article 45(3) of the Constitution.
The women’s rights organization contended that the law unfairly disadvantages women, whose non-monetary contributions — such as domestic work, childcare, and emotional support — are often difficult to quantify compared to the monetary contributions typically made by men.
Through its appeal, FIDA-Kenya proposed that property acquired during marriage should automatically be owned in equal shares, regardless of who paid for it. The group said this would reflect true equality between spouses as envisaged by the Constitution.
“The appellant thus sought judgment against the respondent seeking a declaration that section 7 of the Matrimonial Property Act, to the extent that it bases division of matrimonial property upon contribution, is invalid as it is in conflict, is inconsistent, and contravenes Articles 27, 40, 45(3) and 60(1) of the Constitution, and its therefore null and void,” read the appeal.
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Court of Appeal Upholds Law Tying Marital Property Division to Spousal Contribution
FIDA-Kenya had asked the court to issue an order of mandamus compelling the Attorney General to amend the Matrimonial Property Act, 2013, by deleting Section 7 and replacing it with a new provision guaranteeing equal ownership of matrimonial property regardless of each spouse’s contribution.
In its proposed amendment, FIDA wanted the law to read:
“Subject to section 6(3), 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.”
“As pronounced by the Supreme Court, the function of any court, in the event that a marriage breaks down, is to “make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution”
However, the Court of Appeal upheld the High Court’s earlier decision, finding that Section 7 of the Act is consistent with the Constitution.
The judges noted that the law explicitly recognises both monetary and non-monetary contributions, including domestic work, management of family businesses, and companionship.
Division Depends on Spousal Contribution
Quoting the Supreme Court’s decision in J.O.O. vs M.B.O., the appellate court emphasized that the equality guaranteed by Article 45(3) does not mean an automatic 50:50 split of property after divorce.
Instead, it calls for equity and fairness, ensuring that each spouse receives a share proportionate to their overall contribution during the marriage.
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The Court said the inclusion of non-monetary contributions in the law was a deliberate effort by lawmakers to correct historical injustices that undervalued women’s unpaid labour in the home.
It added that fair division must be determined on a case-by-case basis, taking into account the unique circumstances of each marriage.
In conclusion, the Court dismissed FIDA-Kenya’s appeal, affirming that Section 7 of the Matrimonial Property Act, 2013, is constitutional.
“It is my conclusion that the impugned section does not offend any of the provisions of the Constitution as alleged, nor does the section contradict any of the provisions of the act. Having so concluded, I find and hold that the Petitioner does not qualify for any of the reliefs sought in this Petition. In the circumstances, I dismiss this Petition with no orders as to costs,” the court ruled.
The decision means that during divorce or separation, couples will continue to have their property divided based on what each party contributed — whether financially or through non-monetary support.
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