oa ESR Review : Economic and Social Rights in South Africa - Women’s Right to Matrimonial Property Is Still in Murky Waters : a review of federation of Women Lawyers v the Attorney-General

Volume 20 Number 3
  • ISSN : 1684-260X



Since time immemorial, women have been marginalised in issues of the right to matrimonial property upon dissolution of marriage. The recent decision by the Constitutional and Human Rights Division of the High Court of Kenya in the matter of Federation of Women Lawyers Kenya (FIDA) v the Hon. Attorney-General was a missed opportunity to correct historical wrongs in the realisation of women’s right to property. In its decision, the Court held that section 7 of the Matrimonial Property Act (MPA) of 2013 – which bases the criteria for distributing matrimonial property upon dissolution of marriage on contributions by the parties in the acquisition of the property – is constitutional and does not impinge on women’s right to equality and right to property. In a nutshell, the Court is of the view that the Act secures women’s right to property and equality by including both monetary and nonmonetary contributions in the equation for ascertaining the distribution of property. This article contends, however, that the Court’s decision failed to protect women’s right to matrimonial property by overlooking the unequal power relations between men and women in general and in marriage in particular. The woman’s financial contribution to the property acquired during the marriage is, indeed, restricted by cultural factors and the hierarchical relationship between men and women, while her non-financial contribution is undervalued by the same system.

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