FOR IMMEDIATE RELEASE
Hearing Date: 3 February 2025
Issue: Division of matrimonial property upon dissolution of marriage at divorce or separation
Case: FEDERATION OF WOMEN LAWYERS IN KENYA (FIDA-K) v ATTORNEY GENERAL CIVIL APPEAL No 238 of 2018
Court: Court of Appeal of Kenya
At the end of a marriage, most couples have to deal with the consequences of the dissolution of marriage such as the fate of matrimonial property acquired during the subsistence of the marriage. Many a times, the process of division of matrimonial property upon divorce is heavily contested, painful and difficult. A divorce has particularly deep and enduring economic consequences for women; and most women have generally shared their experiences as being worse off economically and socially than men following the dissolution of marriage.
This case seeks to question the legal requirement for proving contribution made by a party to a marriage towards the matrimonial property during the subsistence of the marriage as a basis for division of matrimonial property. The issue of proving contribution has had different reiterations within the Kenyan courts at different stages all seeking an understanding of the meaning of the principle of equal partnership in marriage in the eyes of the law.
This case was filed by Federation of Women Lawyers in Kenya (FIDA-Kenya) challenging the constitutionality of section 7 of the Matrimonial Property Act of 2013. This provision provides that at dissolution of marriage, matrimonial property vests on the spouse according to the contribution made by either spouse towards the acquisition of matrimonial property. FIDA-K claims that section 7 is in violation of anti-discrimination law provided for in Article 27 and Article 45(3) of the Constitution. Article 45(3) of the Constitution stipulates that parties to a marriage shall have equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. FIDA-K seeks a declaration that section 7 of the Matrimonial Property Act is invalid for being inconsistent with the Constitution.
The Attorney General has been cited as the respondent in the petition. He argues that the law is gender neutral and does not violate the principle of equality and non-discrimination. Further that the recognition of the principle of equality in family law does not automat8icalloy guarantee a 50:50 sharing of matrimonial property upon divorce.
Initiative for Strategic Litigation in Africa (ISLA), a non-governmental organization based in Johannesburg, through its legal representative KELIN was granted leave to join the case as an amicus curiae on 23 February 2024. ISLA seeks to provide information to the Court on how the requirement to prove contribution as a legal requirement for sharing of matrimonial property disproportionately impacts women’s rights to an equitable share of matrimonial property. ISLA shall address the Court on four issues:
- Regional and international law on the distribution of matrimonial property upon the dissolution of marriage;
- Comparative jurisprudence on the distribution of matrimonial property upon dissolution of marriage;
- Relevant law reform initiatives in comparable jurisdictions; and
- Judicial pronouncements have had a retrospective effect to the property rights of women.
ISLA is of the respectful view that this information shall help the court understand the meaning of the principle of equal partnership in marriage and apply the principle of equality, fairness and non-discrimination as the most suitable framework for ensuring equitable share of matrimonial property.
The case will be heard on 4 February 2025.
For more information contact:
Carolene Kituku
ISLA Women’s Socio-economic Rights Lawyer
Nyokabi Njogu
KELIN Litigation Counsel
E-mail: vnjogu@kelinkenya.org