ARTICLE 45 (3) OF THE CONSTITUTION OF KENYA 2010 AS ECHOED IN THE MATRIMONIAL PROPERTY ACT NO 49 OF 2013

Hannah Wanjiku Kimani.

According to an omnibus study carried out between June 29 and July 11, 2023, 57% of Kenyan adults are married, and the country's divorce rate is below 1%. With a sampling error of +/-1.8 percent, the survey was performed among 3,000 respondents who were at least 18 years old and were spread over all 47 counties. In order to ensure fair distribution of marital property between spouses, the Federation of Women Lawyers in Kenya (FIDA- Federación Internacional dé Abogadas -Kenya), an NGO that promotes women's rights, partook in a High Court case; J. O. O v M. B. O as an interested party. The Matrimonial Property Act no 49 of 2013, according to FIDA-Kenya, violates some parts of the Kenyan Constitution that ensure equality before, after and at the dissolution of marriage. They contended that married women are discriminated against both directly and indirectly during the dissolution of their marriages by sections 6 and 7 of the 2013 act. Sharing matrimonial property equally between spouses would " open the door for a party to get into marriage and walk out of it in the event of divorce with more than they deserve," according to the High Court of Kenya. On January 27, 2023, the Supreme Court of Kenya ruled that marital property must be shared on the basis of fairness and not in accordance with an automatic, fixed formula that imposes a 50-50 split.

INTRODUCTION 

Article 2(1) of the Constitution of Kenya 2010 recognizes the constitution as the supreme law of the Republic of Kenya which binds all persons and all State organs at both levels of government. All other laws draw their legitimacy from the Constitution. Article 45(3) of the Constitution of Kenya 2010 entitles parties to a marriage to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. This constitutional provision serves as a8 cornerstone in safeguarding matrimonial property rights and its implications are particularly evident in the Matrimonial Property Act no. 49 of 2013. It is designed to address issues surrounding the equitable distribution of property upon the dissolution of a marriage. Aligned with the constitutional framework, the Matrimonial Property Act of 2013 (Hereinafter referred to as The Act) provides a legal framework for the division of matrimonial property in Kenya. The Act recognizes contributions made by each spouse to the acquisition, improvement, and maintenance of the property during the marriage. This legislation intersects with constitutional provisions which safeguards the right to marry and the rights and responsibilities within marriage. This article delves into Article 45(3) of the Constitution of Kenya being echoed in the Matrimonial Property Act of Kenya.

NEXUS BETWEEN ARTICLE 45(3) AND MATRIMONIAL PROPERTY ACT

Section 6 of the Act defines matrimonial property as the matrimonial home, household goods and effects in the matrimonial home or homes and any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. Section 6(2) provides that trust property, including property held in trust under customary law, does not form part of matrimonial property. This brings in the issue of whether or not this rule gives spouses who are aware that a divorce is about to happen the chance to employ dishonest tactics, including setting up fictitious trusts, to keep certain assets from becoming matrimonial property that must be divided once the marriage ends. According to the Act, if one spouse purchases property either before or during the marriage, it does not automatically become matrimonial property. However, if the other spouse contributes to the property's improvement, that spouse will receive a beneficial interest in the property equivalent to the contribution made. (Section 9 of the Act)

On the basis of equitable theory, Martindale states: 

Equitable theory of distribution is a creation of natural law, it is however different from what people assume, it is not a requirement of a fifty-fifty split of marital property instead it takes into account the financial situation of either spouse. However, it is harder to predict an outcome as many factors are taken into consideration such as the length of the marriage, the income or property brought to marriage by each spouse, any written agreement made by the spouses before or during the marriage concerning property distribution and many others. ( Martindale Hubbell, Property in Divorce: Equitable Distribution (2021))

Prior to the Act, the operative law was Article 45 (3) of the Constitution of Kenya. The courts interpreted this provision to mean that on dissolution of marriage, the matrimonial property would be divided equally between the parties. In the case of C.M.N. v A.W.N [2013] eKLR, the court ruled for a 50-50 split of matrimonial property despite the former husband making all the monetary contributions. This ruling was based on the provisions of Article 45(3) of the Constitution. Section 2 of the Act provides for both monetary and non-monetary contribution which includes but not limited to: domestic work and management of the matrimonial home, child care and companionship. However, a major issue arises in the interpretation of the term equal rights provided in the constitution.

 In the recent case of J.O.O v M.B.O, [2023] KESC 4 (KLR) the Supreme Court partook in the ruling of the division of matrimonial property. The brief facts of the case are that the parties entered a marriage under Abagusii customary law in 1990. On 30th August 1995, they formalised their union under the Marriage Act, CAP 150 Laws of Kenya (now repealed)where they were issued with a marriage certificate. During the subsistence of their marriage, they had two children. The parties also acquired several property. The respondent claimed that they constructed rental units on one of the property and that she had successfully applied for a loan of Ksh 200,000, which she gave the Appellant to enable him complete the construction of the said units. In 2008, the marriage irretrievably broke down and the husband filed for divorce, culminating into the commencement of division of matrimonial property proceedings. 

The case, which began at the High Court, underwent an appeal to the Court of Appeal and later on a final appeal to the Supreme Court. The Supreme Court ruled that the allocation and division of matrimonial property may only take place in cases where parties fulfill their duty to demonstrate what they are entitled to by way of contribution. This concept governs the assessment of whether Article 45(3) conferred proprietary rights. The Court held that neither the execution of domestic tasks nor the wife's frugal expenditure on housekeeping can give one spouse the exclusive right to a beneficial interest in property registered in the other's name. Consequently, in order for the Court to ascertain the portion that the party is entitled to a distribution, the party must establish contribution. This preserves the general expectation that the equality principle will be followed.

The Supreme Court acknowledged that there has been a contention that Article 45(3) should be interpreted to indicate a divide of property down the middle. However, proponents of the second school of thought contend that the definition of "equal" in the aforementioned Article indicates that a party receives something in return for their contributions, whether they be financial or not. This term in the right sense ought to be interpreted to mean that the circumstances or rather the environment in which property is divided should be equal between the spouses. The Supreme Court cited the equity maxim of equality is equity, maxim of equity stating that if there are no reasons for any other basis of division of property those entitled to it shall share it equally, Oxford Dictionary of Law (9th edn, Oxford University Press 2018) and stated that Article 45 (3) underscores the concept of equality as one that ensures that there is equality and fairness to both spouses, in ensuring that all parties have the same rights at the dissolution of a marriage based on their contribution.

The Supreme Court's ruling upholds the significance of the equitable and fair distribution of matrimonial property following dissolution of marriage. The ruling highlights the need for the distribution of marital property to take into account each spouse's direct and/or indirect contributions to its acquisition and growth. It doesn't matter if these contributions were not given evenly or in the same way; what counts is that every party, has to be acknowledged for their involvement in helping to acquire the property. By guaranteeing a just and equal distribution of matrimonial property, the ruling thereby protects Kenyan spouses' rights to it. In light of this, there is necessity for spouses to demonstrate their contribution to the acquisition of matrimonial property, which helps the courts ascertain the portion of the property that each party is entitled to at the time of distribution.

CONCLUSION

Together, Article 45(3) of the Constitution of Kenya 2010 and the Matrimonial Property Act no. 49 of 2013 provide a thorough legal framework that upholds the institution of marriage's commitment to justice, equality, and the protection of spousal rights. The Matrimonial Property Act enhances the constitutional provisions outlined in Article 45(3) by addressing the particular difficulties pertaining to matrimonial property. This connection illustrates Kenya's dedication to promoting a fair and just society, especially with regard to marriage rights and family law.