15 May 2018

Kenya: Fida to Appeal Ruling on Property Sharing After Divorce

Nairobi — The Federation of Women Lawyers (FIDA) says it will appeal the ruling requiring spouses to share property after divorce based on the percentage of contribution rather than on a 50-50 basis.

In an interview with the Capital FM News, FIDA Executive Director Teresa Omondi stated that the ruling discriminates against women.

"We would really want a proper interpretation; we don't want it to be skewed. As it stands the constitution protects both men and women to be equal in a marriage."

"I do agree with the judge on some points but he should have emphasized rather that the property upon divorce should be shared equitably (fairly) and not necessarily equally (50-50)," Omondi noted.

She further argues that women suffer most especially after the dissolution of a marriage.

"Women who contribute to the acquisition of their matrimonial properties but have no tangible proof of the same are at a distinct disadvantage as it serves to disenfranchise and disempower women economically," she said.

Omondi contends that several factors should be considered including the number of years a couple has been married, financial and non-financial contributions among others.

The Federation of Women Lawyers had challenged the constitutionality of Section 7 of the Matrimonial Properties Act which they argued offends Article 45(3) of the constitution which provides that parties to a marriage are entitled to equal rights at the start, during and dissolution of marriage.

The contention was that the law was passed by Parliament despite objections.

However while issuing the ruling, Justice John Mativo said claims that the law infringes on the right to property cannot succeed.

The judge said by providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage.

"The law does not offend any of the provisions of the constitution as alleged by FIDA nor does the section contradict any of the provision of the Act."

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