ADVANCING WIDOW’S RIGHTS TO LAND AND NATURAL RESOURCES THROUGH AFFIRMATIVE ACTION
Over the last decade, Kenya has taken some steps to promote fairness and secure women’s rights within the institution of marriage. The promulgation of the progressive 2010 Constitution and the enactment of the Matrimonial Property Act of 2013 (‘MPA’) have been significant steps in the right direction. The act abolished the unconstitutional marital powers of the husband and placed husbands and wives on equal footing. Men and women who are married in civil marriages in community of property must now consult each other on all important financial transactions, as equal partners.
Before the Act was passed, the common law concept of “marital power” gave the husband the right to control the joint estate. Even though half of everything belonged to the wife, the husband had the authority to administer the estate on behalf of the couple.
Section 5 gives equal power to spouses married in community of property: to dispose of the assets of the joint estate; to contract debts for which the joint estate is liable; to administer the joint estate.
Section 6 states that “a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse”.
Provides women married in a community of property equal access to bank loans and ownership of property without the consent of their partner.
Makes the age of consent for entry into civil marriage 18 years for both sexes, and provides that men and women are equal before the law.
Provides that immovable property, such as a communal house, must be registered in both spouses’ names. The sale of such property has to be approved by both parties. Likewise, the act provides for equal guardianship over minor children of the marriage.
When a marriage in community of property ends, any liabilities are settled out of the joint estate. If the marriage ended in divorce, the remainder of the estate is normally divided equally between the spouses.
If the marriage ended due to the death of one spouse, the surviving spouse keeps his or her own half-share and the deceased spouse’s half-share is distributed in terms of the law of succession or intestacy.
In marriages out of community of property, the assets and debts of the husband and wife remain separate. Ownership of property remains with the person who acquired it. If the marriage ends, each spouse retains his or her own separate belongings.
The Act also makes it clear that both husbands and wives in marriages out of community of property bear responsibility for making contributions to household necessities in proportion to their resources. Both spouses are jointly and severally liable to third parties for all debts incurred by either of them for necessities for the joint household. A spouse who has contributed more than his or her fair share for such necessities has a right of recourse against the other spouse.
Couples who have entered into antenuptial agreements sometimes use a variation of community of property known as the “accrual system”.
In this system, the property owned by the husband and the wife before the marriage remains their separate property, and property acquired during the marriage is administered as separate property. When the marriage comes to an end, husband and wife share equally all of the property and assets that were added to the household during the marriage. There is no sharing of losses, only of profits.