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Kenya: Parliament Passes Matrimonial Property Bill, Affects Equal Sharing of Assets in Divorce

(Nov. 18, 2013) On November 12, 2013, Kenya’s Parliament passed the Matrimonial Property Bill, 2013, with key amendments that some argue will adversely affect the ability for stay-at-home women to gain an equal share of assets in divorce. (John Ngirachu, MPs Pass Contentious Matrimonial Property Bill, DAILY NATION (Nov. 12, 2013).) The amendments passed due to the overwhelming support of the male MPs, with 28 of the 34 women members opposed. (Id.) President Uhuru Kenyatta must approve the legislation before it can take effect. (Id.)

The initial version of the legislation guaranteed an equal share of assets for women. It stated that in the absence of a prenuptial agreement, “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.” (Matrimonial Property Bill, § 7, KENYA GAZETTE SUPPLEMENT, No. 96 (July 5, 2013), Kenya Law Reports (KLR) website.) This provision was later amended to read that, upon divorce, spouses share property on the basis of the contributions they make in its acquisition. (Ngirachu, supra.)

The legislation does, however, expand on a currently applied broad definition of the term “contribution” and reverses the burden of proof in favor of women. Under current law, a woman is entitled to an equal share of property in divorce if she can prove that the property in question was acquired during the subsistence of the marriage and that she “contributed directly or indirectly” to its acquisition. (Wn v. Nk (2008) 1 KLR (G&F) 221.) The woman currently has the burden of proof. (Id.)

The definition assigned to the term “contribution” in the initial version of the legislation, which appears to have remained unchanged in the final version, expands on the term “direct and indirect contribution.” The term “contribution” in the new legislation includes non-monetary forms of input, including “domestic work and management of the matrimonial home; child care; companionship; management of family business or property; and farm work.” (Matrimonial Property Bill, § 2; John Ngirachu, Big Win for Stay at Home Spouses, DAILY NATION (Nov. 13, 2013).) In addition, it now provides that “where matrimonial property is acquired during marriage … in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.” (Matrimonial Property Act, § 14.) Therefore, it appears that in order to be awarded sole possession of the assets or a higher portion of them, the husband would have to establish a reason not to follow the equal division standard.

Another notable amendment that may affect the ability for women to gain an equal share to assets changes the definition of what constitutes matrimonial property. The initial version of the legislation defined the term to include, among other things, any movable or immovable property owned by both spouses or either spouse and acquired during the subsistence of the marriage. (Matrimonial Property Bill, § 6.) It was subsequently amended to limit the matrimonial property to movable and immovable property jointly owned by both spouses. (MPs Pass Contentious Matrimonial Property Bill, supra.) This will have the effect of, for example, rendering immovable property registered under the name of a husband his personal property and thus outside the purview of the divorce settlement proceeding. (John Ngirachu, Bill Strips Women of Family Wealth Rights, DAILY NATION (Nov. 12, 2013).) In Kenya, although women make up half of the country’s population, only 5% of land title deeds is held by women jointly with men and only 1% is held by women independently. (FEDERATION OF WOMEN LAWYERS, KENYA, WOMEN’S LAND AND PROPERTY RIGHTS IN KENYA, FIDA Kenya website (last visited Nov. 14, 2013).)

Although their share of assets will depend on the extent of their contribution, under the new law married women will, upon divorce, automatically assume an equal share of liabilities incurred during the life of the marriage. The legislation provides that parties to a marriage will equally share debts incurred during their marriage or justified expenses made for the benefit of the marriage. (Matrimonial Property Bill, §10; MPs Pass Contentious Matrimonial Property Bill, supra.)