By LILLIAN ALUANGA-DELVAUX
Kenya: The new Constitution appears to have emboldened more women to seek legal redress in resolving disputes on child custody, maintenance, sharing of matrimonial property and land.
Though debatable, a rise in the number of women seeking legal aid in the past four years is being linked to the 2010 Constitution and resultant legislation.
Coupled with this, according to family law experts, is the heightened awareness of the law in light of civic education conducted prior to the 2010 Referendum.
But just what has changed for the women since then?
Take for instance the Matrimonial Property Act, a law birthed after the new Constitution, that spells out issues of ownership in marriage, spouse’s property rights, and liabilities- critical issues when dissolving a marriage.
“The law governing sharing of matrimonial property prior to the new Constitution was heavily borrowed from the Married Women Property Act of 1882 and had no substantive provisions thereby leaving matters to a judge’s discretion,” says family lawyer Judy Thong’ori.
Now under the Matrimonial Property Act, it’s clear that matrimonial property cannot be sold, leased or mortgaged during a monogamous marriage, without consent of both spouses (Section 12).
While the position of those in polygamous marriages may not have been expressly stated, the Land Registration Act is assumed to prevail over all practices or procedure relating to land.
The Land Registration Act is another new legislation arising from provisions in chapter five of the Constitution — that was gamechanger for women in matters of land administration, and ownership.
One of the major gains for women is contained in Section 93 of the Act, which provides that if land is held in the name of one spouse only but the other spouse or spouses contribute by their labour or other means to its productivity, upkeep and improvement, that spouse qualifies to have acquired an interest in the land in the nature of ownership.
By virtue of the Constitution outlawing all manner of discrimination based on age, gender, race, disability, or marital status, women can now also claim a share of family land, which was not the case previously.
Polygamous unions
The Marriage Act provides a ‘one-stop-shop’ on matters of definition, kinds of marriages, subsisting marriages, as well as rights of widows and widowers.
Previously, marriage was governed by seven statutes dating back to the pre-colonial period, including the The Mohammedan Marriage and Divorce Registration Act (1906), and the Mohammedan Marriage Divorce and Sucession Act (1920).
Under the new marriage law, customary marriages will also, for the first time, be codified, which means they are now recognised by law, thus protecting women in these potentially polygamous unions.
The Bill of Rights, under the Constitution, makes provisions for courts to keep formalities relating to procedures at a minimum, which is an advantage for women with no legal background, that want to represent themselves in court.
On matters childcare the Constitution (section 53) clarifies that both parents are obliged to take equal responsibility, whether they are married to each other or not.
Nairobi lawyer Mugo Kamau concedes that although majority of cases on child maintenance are genuine, couples have sometimes used children to sort out their differences. The Constitution, he says, strengthened rights contained in the Children Act of 2001, further protecting a vulnerable group in society.
