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Once You Get Out You Lose Everything: Women and Matrimonial Property Rights in Kenya

Inconsistent Laws and Discriminatory Traditions Rob Wives of Matrimonial Property Rights

By Human Rights Watch Press
Published July 4, 2020

Calling on Kenya to 'guarantee women their share of matrimonial property in law and in reality' during the launch of a 64-page report titled Once You Get Out You Lose Everything: Women and Matrimonial Property Rights in Kenya, Juliana Nnoko-Mewanu, researcher on women and land at HRW urged the government of the East African country to 'act on principles of equality, equity, and nondiscrimination to ensure that women’s rights are protected'.Despite Kenya’s Matrimonial Property Act of 2013 that recognises that women have the same rights as men in marriage, ambiguous and antiquated laws that remain on the books and discriminatory social and traditional practices make it difficult for married, divorced, separated, and widowed women to claim the property the law entitles them to.

Calling on Kenya to ‘guarantee women their share of matrimonial property in law and in reality’ during the launch of a 64-page report titled Once You Get Out, You Lose Everything: Women and Matrimonial Property Rights in Kenya, Human Rights Watch (HRW) and Federation of Women Lawyers (FIDA-Kenya) urge the government of the East African country to ‘act on principles of equality, equity, and nondiscrimination to ensure that women’s rights are protected’.

In the report released on June 25, 2020 the rights agencies contend that Kenya’s constitution, that they say is consistent with international interpretations of equality and nondiscrimination, falls short of ensuring substantive change for lack of adequate enforcement.

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Once You Get Out You Lose Everything: Women and Matrimonial Property Rights in Kenya“The current laws guaranteeing married women rights to matrimonial property are filled with significant gaps,” says Juliana Nnoko-Mewanu, researcher on women and land at HRW. “The government needs to clarify by law what constitutes women’s contribution to shared property, how to value and measure it, and ultimately how that contribution is calculated as a share of property at the end of a marriage.”

Both judicial and non-judicial procedures that determine division of matrimonial property at dissolution of marriage either through divorce or death, the rights bodies say, discriminate against and deter women from claiming any share of matrimonial property.

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Although the law appears to be clear that monetary and non-monetary contributions should be considered in sharing property at the end of a marriage, neither the law nor the High Court or Judiciary clarify what proof of contribution is required, and how such contributions should influence how property is shared. Judges are left to decide their own rules for proof and calculation of contributions. In some cases, judges have asked spouses to produce receipts from years of marriage.

Existing laws on succession and inheritance do not mirror the right guaranteed in the 2013 act to access property jointly acquired with spouses who have died. Under the Succession Act, the surviving spouse becomes the owner of the deceased’s personal and household items, but only retains a ‘life interest’ in other property such as land and houses during their lifetime.

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The surviving spouse cannot dispose of immovable property without court permission and a widow loses her right to use this property if she remarries. The act also exempts agricultural land, crops, and livestock in certain districts if there is no will. Succession in these cases is under customary laws, which largely discriminate against women and girls.

Some social and traditional practices on marriage and inheritance such as dowry, customs concerning children after divorce, and those that discriminate against women owning land and property make it exponentially more difficult for some women to access matrimonial property in Kenya.

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“The current laws guaranteeing married women rights to matrimonial property are filled with significant gaps,” says Juliana Nnoko-Mewanu, researcher on women and land at HRW. Women’s rights to land and other productive resources, such as access to credit and agricultural inputs, are interrelated and often dependent on their ownership of matrimonial property. Ensuring a fair division of matrimonial property is a key part of protecting women’s rights. Clear and just rules on the fair division of matrimonial property also provides an important legal recognition of the value of women’s economic contributions, including domestic and caregiving labor, and support broader changes to social norms around women’s unpaid work.

International and regional human rights treaties the Kenyan government has ratified guarantee a fundamental right to equality and prohibit unjustified differential treatment based on sex. The government has human rights obligations to ensure women’s equal rights in marriage and during divorce. It should take concrete steps to address barriers to implementation of the 2013 act, providing clarity and guidance to judicial officials on identifying and assessing matrimonial property and to harmonize all laws to guarantee equal rights.