Over the last decade, Kenya has established laws to ensure equality of spouses in marriage and equitable distribution of matrimonial property. However, women face many challenges in acquiring property in their name or jointly with a spouse at the dissolution of their marriage after divorce or should their partner die. A female spouse is not automatically entitled to half of the spouse’s marital property in case of a divorce.
Women throughout Kenya lose their homes, land and other properties due to discriminatory laws and customs. A report by Human Rights Watch and Fida-Kenya says that tradition and stereotypes still overrule equality laws. A woman’s right to inherit, own property and manage her property has long been opposed by customary practices that permit women-only secondary rights to property and land through male relatives. Cultural considerations have a major influence on how marriages are dissolved and managed, also on how widows are treated.
Although the law is clear that monetary and non-monetary contributions should be considered in sharing property at the end of a marriage. This does not clarify what constitutes as proof of contribution and how matrimonial property is shared through such contributions. The report by the Federation of Women Lawyers (FIDA) says even though 32 per cent of households in Kenya are headed by women, only 1 per cent have land titles on their own while 5 per cent own land jointly with men.
Some judges do not recognise women’s unpaid care and domestic work, while others do. Seven years ago, Kenya attempted to strengthen women’s land rights by passing the Matrimonial Property Act 2013. The Act reinforced the equal rights enshrined in the constitution for both spouses when they own property together and also granted new rights to women landlords. But law experts and rights advocates say there many obstacles that hinder women from accessing a fair share of land and property. This is evident especially in cases of inheritance.
Under the Succession Act, the surviving spouse becomes the owner of the deceased’s household and personal items. It only retains a “life interest” in other properties like houses and land during their lifetime. Without a court’s permission the surviving spouse cannot dispose of immovable property and a widow loses her right to use the property if she remarries. In certain districts, the Act exempts crops, livestock and agricultural land if there is no will.
Janet Anyango, a legal counsel says that despite the matrimonial property act giving women the capacity to register their property, a majority of women are unaware they should be registered as owners. She added that most are unaware of the provision provided for them by the new law. Major obstacles such as inadequate access to relevant information, costs of legal proceedings and minimal awareness of rights hinder women from claiming their rights. Other difficulties include inadequate human resource capacity in an alternative dispute resolution mechanism such as mediation mandated by the court, this negatively impacts the ability of women to access justice. It is advised to keep important documents such as death notification, the deceased’s ID card and death certificate. Widows and divorced women are safe when they understand the law and how it protects them.