New debate on sharing matrimonial properties

The Uganda parliament is yet to pass the 2009 Marriage and Divorce Bill that seeks to reform and consolidate the law relating to marriage and separation and divorce

Kampala, Uganda | THE INDEPENDENT | Kenya’s recent court ruling on equal sharing of matrimonial property in the event of a divorce has reignited a debate about the contribution of the unpaid domestic worker towards the family’s wealth creation.

Feminists lawyers in Kenya, Uganda and Tanzania now wants the East African Community partner states to come up with legal frameworks that recognizes that housework and unpaid care work performed by a stay at home parents is recognized in monetary terms.

Jael Amatu, a program manager at a women’s right organisation, Groots Kenya, said during a regional E-conference on the care crisis and the implication of Covid-19 on unpaid care work in Kampala on Nov.25 that that the tasks performed by stay at home parents who are mainly women such as cleaning, washing, digging and taking care of children should be categorized as a full time job.

“Women have always taken up a huge burden on unpaid care work and this is because we live in a patriarchal society which has already dictated the functions and roles that women should play – housekeepers, shopping, child care, taking care of elderly among others,” she said.

“But in the event of separation, women have always been left without any property because the current laws requires that each party accounts for their contribution towards that property and women have not been able to do so. Now we want the governments in the region to be able to review these kinds of conflicts.”

“We are happy with the (Kenyan) rulings which has set a precedence that being a stay at home parent is payable job. This means that at the time of separation, one can actually say I did this,” she added.

On Sept.24, Kenya’s High Court in Nakuru held that the housework and care work performed by stay at home spouses are entitled to an equal share of the matrimonial property at the time of the dissolution of marriage.

The court observed that mothering, housekeeping and taking care of the family is more often than not given any value when it comes to sharing matrimonial property.

The court said it is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family.

“That spouse will be heard to say that the other one was not employed so they contributed nothing. That can no longer be a tenable argument as it is a fact that stay at home parents and in particular women because of our cultural connotations do much more work (house wives) due to the nature of the job . . . hence for a woman in employment who has to balance child bearing and rearing this contribution must be considered,” the court said.

The court said the same should count to where a husband has not supported raising the children or born his share of parental responsibility in the event or divorce or separation.

A Human Rights Watch and the Federation of Women Lawyers (FIDA-Kenya) report released last year indicated that women in Kenya have been left without protection to claim their matrimonial property despite relative progress in the laws on paper.

The 64-page report dubbed “Once You Get Out, You Lose Everything” documented how the 2013 Matrimonial Property Act, which recognized that married women have the same rights as married men, and other legal reforms are undermined in practice.

“The current laws guaranteeing married women rights to matrimonial property are filled with significant gaps,” said Juliana Nnoko-Mewanu, researcher on women and land at Human Rights Watch.

“The government needs to clarify by law what constitutes women’s contribution to shared property, how to value and measure it, and ultimately how that contribution is calculated as a share of property at the end of a marriage. The matter is currently in the Supreme Court.

Uganda’s journey

In Uganda, care work is not addressed explicitly in policy or service provision, the lawyers said, adding that the passing of the Early Child Development Policy (March 2016) and the Social Protection Policy (November 2015) is a step in the right direction in reducing the care workload but more needs to be done. In addition, the parliament is yet to pass the 2009 Marriage and Divorce Bill that seeks to reform and consolidate the law relating to marriage and separation and divorce.

Allana Kembabazi, Programs Manager, Initiative for Social and Economic Rights (ISER) said there’s an increase in consensus that unpaid care work is a human rights issue because the work has some sort of economic value to the families and the country.

“One can be a stay at home mum and taking care of the children or may be working like me but still finds that she is the one planning for the family meals, taking the father to the doctor and other things and the counterpart is not doing but you are doing it for the smooth functioning of the home,” She said.

“Fetching of firewood, water, taking care of the children and others contributes to the welfare of the home and thus should be paid.”

However, a section of the population and courts especially in Kenya has been opposed to the move saying the position would mount to opening gates for fraudulent marriages where individuals enter matrimony with the intention of triggering divorce a few months down the line and walking away with half of their spouse’s wealth.

Meanwhile, Patricia Bigiirwa Twasiima, a programme officer at Segal Family Foundation said restrictions imposed to curb the spread of Covid-19 and job cuts affected women more than men.

The lawyers argue that even with mass vaccination drives, the prolonged restriction and lockdown measures since the beginning of the pandemic have resulted in more onerous unpaid work burden on women due to the emergence of the new and additional burden of educating children with the closure of schools, social isolation, and the increased number of sick people that have heightened care needs of older persons and the overwhelmed health care services.

The E-conference was organised by Femme Forte in partnership with Groots Kenya and the Maasai Women’s Development Organization based in Tanzania, with support from Urgent Action Fund.