The Changing Face of Marriage: Understanding Perceptions of Marital Equality vis a vis" Ogentoto vs Ogentoto"


By Gloria Adenyi

'The cock can feather the nest because he does not have to spend most of his time sitting on it'[i]. This saying is a metaphor of what happens exactly in our marriages. The cock being the husband, who goes to work every day leaving the wife in the nest to maintain and take care of the home and the children. This leaves the wife with little time to feather the nest. The division of matrimonial property has been a contentious issue in the contemporary society owing to the rise of divorce cases. Marriage is no longer a sacred union between two parties. It has turned out to be a business setup where a party can decide to take advantage of the other to acquire proprietary interests.

In trying to interpret Article 45(3) which is the main context on division of matrimonial property, I shall bring in Aristotle's theory of equality where he posits that equality is a correspondence that exists between a group of different objects, persons, processes or circumstances that have the same qualities. He bases his argument on two types of equality; proportional equality and numerical equality.[ii] In proportional equality he argues that when individuals are not equal in relevant aspects, giving them equal portions will not be a just measure.[iii] On the other hand in numerical equality, equality is achieved by giving people the same division if those people are same as that is the only way of making them different.[iv]

From the foregoing analysis, it raises the question of what exactly the drafters of the 2010 constitution envision equality to mean? Are married partners equal? Article 27 provides for equal treatment for both men and women in all spheres without discrimination. Consequently, Article 40(2) provides that nobody should be deprived the right to own and enjoy property. Furthermore Article 60(1)(a) talks about equitable access to land with Article 60(f) providing for the elimination of gender discrimination laws, customs and practices related to land and property. Our Constitution is seen to envisage the principle of equality in all aspects regardless of factors that may make one want to limit this right.

By virtue of Article 2(5) and 2(6) of the constitution of Kenya 2010, international laws are applicable in Kenya.[v] Kenya has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[vi] which gives insight of the equality principle in its preamble. It recognises the fact that non-discrimination is an important bit in achieving equality. Additionally, the convention reiterates the promotion of equality to women especially when it comes to ownership of property irrespective of their marital status. CEDAW identifies that culture and tradition have roles in shaping gender but the same should not be used in manner likely to discriminate women in any way.[vii]

The Kenyan Land law system, has progressed from the pre-colonial era during which women's right to own land was not recognised. However it gave women limited access to the land. Incidentally, when women started recognising their rights, a number of women became title holders either absolutely or jointly with their husbands. According to the Kenya Bureau of Statics,[viii] as of 2020 this position did not remain the same, a number of women were on the frontline as titleholders but still their numbers were not the same as those of men.[ix] This contravenes Article 60(1) (a) and Article 27 of the Constitution which provides for equitable access to land and non-discrimination.

Women face a number of challenges in obtaining an equitable share of matrimonial property leave alone land.[x] This is because of various factors such as; discriminatory laws, cultural attitudes and economic disadvantages.[xi] Overtime research has shown that when it comes to joint ownership of property, most women allow their husbands to be the title holders .This situation leaves women in plight when a marriage ends. With joint ownership it would be easy as the same would be distributed on a 50:50 basis but without evidence of joint ownership, there is not much that the courts can do. In countries like South Africa[xii] and Nicaragua[xiii] there is a requirement of joint registration when it comes to matrimonial property. In cases where the title is in the name of the husband it is assumed that he is holding it on behalf of the wife and the consent of the wife will be required whenever the husband is making any transaction on the property.

It is important to note that it is possible in marriage for title to be in the name of one party on behalf of the other which is usually the case in most marriages where women leave title holding to their husbands and then later on it becomes hard for them to prove that in court. Women's rights should be considered because they are already at a disadvantaged place owing to the fact that customary law forms part of our laws yet there is still need to reconcile it with women rights. Customary law is structured in a patriarchal manner making it hard to survive in our society as still they are expected to live up to the olden beliefs that the wife was under the husband.[xiv]

In the Supreme Court decision in Joseph Ombogi Ogentoto vs Martha Ogentoto [xv]the bone in contention was as to the division of matrimonial property where the court awarded the wife 30% of the matrimonial property after she failed to prove contributions that she had made towards the acquisition of the said property. Was this a just share? Looking at Aristotle's insight on equality, equality is taken to mean giving someone a share that would place them in the same position as you. Is indirect contribution the same as direct contribution? What could be the possible reasons that made the wife unable to contribute an equal share to the acquisition of their matrimonial property? In trying to answer this question l shall refer to Lord Hodson in Pettitt vs Pettitt[xvi] where he posits that a cock can feather the nest because he does have to spend most of the time sitting on it. In a marriage, most husbands are the breadwinners of the family not because women cannot be breadwinners but because they both opt for women to focus on taking care of the home and the children.

Moreover, the Ogentoto's got married in 1990 under the customary law of Abagusii which guided most of their practices. Customary law is recognised as a source of law.[xvii]It applies provided it is not repugnant to justice and morality. There is conflict between customary law and women's rights because traditional African societies were patriarchal in nature thus not recognising a woman's individual interest. This might be what happened with the Ogentoto's.

In conclusion, cases on division of matrimonial property are decided on a case-to-case basis, our courts are left with a wide discretion of deciding the formula in which they would do so due to the lack of a clear law specifying the exact ratio on how to go about.Kiage J in P.N. N V Z.W. N [xviii]ruled that in dividing matrimonial property there is no fixed formula but instead division should be in a fair and conscience manner. What is a fair and conscience manner? Is it considering the contributions that each party has made? Is it awarding them a share of property that would make them equal?

[i] Lord Hodson in Pettitt vs Pettitt [1970]AC 777

[ii]Ostwald M, Nicomachean Ethics Aristotle, Macmillan Publishing Company, 1962, 110

[iii] Ostwald M, Nicomachean Ethics Aristotle, Macmillan Publishing Company, 1962, 110

[iv] Ostwald M, Nicomachean Ethics Aristotle, Macmillan Publishing Company, 1962, 110

[v]Article 2, Constitution of Kenya (2010)

[vi] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979.

[vii] Article 5, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979 (CEDAW).

[viii] Kenya Bureau of Statistics <https://www.knbs.or.ke/> accessed on 20 March 2023

[ix] Patricia Kameri-Mbote, 'The land has its owners! Gender issues in land tenure under customary law in Kenya' IELRC working paper International Environmental Law Research Centre (2005 – 9) at 1. Available at <http://www.ielrc.org/content/w0509.pdf> accessed on 20 March 2023.

[x]Women's Land and Property Rights in Kenya: Moving forward into an era of equality, available at <http://www.kenyalandalliance.or.ke/wp-content/uploads/2015/03/Women-property-rights.pdf >accessed on 20 March 2023

[xi] Women's Land and Property Rights in Kenya: Moving forward into an era of equality, available at <http://www.kenyalandalliance.or.ke/wp-content/uploads/2015/03/Women-property-rights.pdf >accessed on 20 March 2023

[xii]South African Matrimonial Property Act (88 of 1984)

[xiii] Article 29 of Nicaragua's Law 278 (1997)

[xiv] Customary Law and Women's Rights in Kenya, available at <http://theequalityeffect.org/wpcontent/uploads/2014/12/CustomaryLawAndWomensRightsInKenya.pdf >accessed on 20 March 2023.

[xv] Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto; FIDA-K and Law Society of Kenya (amicus curiae) petition No. 11 of 2020

[xvi] Pettitt v Pettitt[1970] AC 777

[xvii] Section 3, Judicature Act.

[xviii] P.N.N v Z.W.N (2012) eKLR.

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