Equality in Marriage and the Limits of Transformative Constitutionalism: The Kenyan Supreme Court’s Judgment in Ogentoto vs Ogentoto

Article 45(3) of the Kenyan Constitution stipulates that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” This potentially radical provision brings equality into the very heart of the private sphere: that is, to the marital relationship. Of course, the devil is in the detail: one ongoing controversy has been whether – and to what extent – Article 45(3) applies to property claims at the time of the dissolution of a marriage (see Ch. 7 of the present author’s PhD Thesis).

The roots of the controversy lie in the patriarchal structures of our world. It is an incontrovertible fact that in most societies, men hold a disproportionate share of immovable property (for the gendered skew in Kenya, see here). The reasons for these are both historical (dating back to times when women were legally barred from owning property) and current (structural barriers to women acquiring the resources to obtain property). It is also an incontrovertible fact that within marital relationships, division of labour is overwhelmingly gendered, even in a fast-changing world: statistics show that a significant share of (unremunerated) domestic labour continues to be performed by women. For our purposes, this has a natural, knock-on effect upon financial earnings within marital relationships. Subject to exceptions, at a structural level, financial and non-financial contributions towards a household skew along a gendered axis. This, in turn, means that when it comes to the acquisition of property during the course of a marital relationship, again – at a structural level – the financial contributions of the male spouse tend to be greater than that of the female spouse.

If, therefore, at the time of the dissolution of a marriage, property is divvied up solely on the basis of who has legal title to it, it is clear that such a solution will only serve to exacerbate the gendered inequalities that structure a marriage: women come into a marriage at a disadvantage, this disadvantage persists through the marriage, and then becomes the cause for further disadvantage if the marriage ends, and property needs to be divided: a vicious cycle.

What, then, is to be done, if “equality within marriage” is to be meaningful? One solution – prevalent in some jurisdictions – is known as “community of property,” and simply requires a straight, 50-50 split of matrimonial property upon the dissolution of marriage (this solution also carries with it some interpretive problems, such as defining what constitutes marital property). At the other extreme is what we discussed in the above paragraph – only financial contributions are considered towards determining legal interest in matrimonial property. And in between these two solutions, there is a spectrum of different models and approaches: for example, explicitly factoring in non-monetary contributions such as care work, domestic work, and emotional labour (see e.g. Kenya’s Matrimonial Property Act of 2013); having a 50-50 split as a default, which will not apply in cases where it is clearly unconscionable; factoring in the length of the relationship; and so on.

In Joseph Ombogi Ogentoto vs Martha Ogentoto (decided today), the Supreme Court of Kenya located itself somewhere near the middle of the spectrum described above. The case was complicated somewhat by the fact that it was filed before the 2013 Matrimonial Property Act came into force, and there was therefore a question of whether it was governed by the old 1882 Matrimonial Property Act (which did not provide for non-monetary contributions), or the new one. The Supreme Court held that while the 1882 Act was applicable, so was the 2010 Constitution of Kenya (as Article 45(3) applies directly to private parties). The question then squarely arose: what was the meaning of the phrase “equal rights … at the dissolution of a marriage.”

Positions from across the spectrum that we have discussed above were canvassed before the Supreme Court. The Court held that (a) Article 45(3) did not require an absolute rule of a 50/50 split at the time of the dissolution of marriage, and (b) the respective shares of the property would have to be determined on a case-to-case basis, depending upon the actual contributions of each spouse.

As a principled point, the Supreme Court noted that equality within marriage did not entail a redistribution of property rights. With the greatest of respect to the Court, the arguments advanced above make it clear that if you want to have genuine equality within marriage, you do need to reimagine property rights, at least to some degree: as we have seen, existing patterns of property ownership, when placed within patriarchal structures, exacerbate inequalities instead of mitigating them. Indeed, to some degree, this reimagining has already happened in the 2013 Matrimonial Property Act, where childcare, domestic work, and companionship are all treated as “contributions” towards the acquisition of matrimonial property, no matter in whose name and with whose money it is acquired. Another form of reimagining was put forward by the Law Society of Kenya (acting as amicus), which asked the Court to start with a default presumption of a 50/50 division, which could then be departed from in exceptional circumstances. In my view, this would have been a solution that would have both recognised the structure gendered inequalities within marriage, and allowed judges the discretion to mold relief where specific cases did not fall within that structure. However (subject to a caveat I shall come to later), this interpretation did not find favour with the Court.

One can see, therefore, in this judgment, the limits of transformative constitutionalism when it comes to the private sphere, limits that are articulated in the Court’s hesitation to tamper too greatly with the legal regime of property. This is notable, especially because in other contexts, the Court has brilliantly reimagined property rights in the context of transformative constitutionalism: think, for example, of the remarkable judgment in William Musembi, that did so in the context of evictions and the right to housing. Perhaps marriage and the family, however, remains the last hold-out against transformative constitutionalism’s impulses towards democratising the private sphere. Indeed, this is particularly poignant when we consider Dr Victoria Miyandazi’s argument, in her book, Equality in Kenya’s 2010 Constitution (2021), that the intention behind Article 45 was, inter alia, to address “harmful practices such as … unequal claims to matrimonial property upon divorce.” (see pg 42)

Now, having held the above, a lot would turn on what the Court would say about the burdens and standards of proof when it comes to the question of proving contribution. Here, there appears to be some internal tension within the judgment. At certain points, the Court seems to suggest a high standard of proof; citing the previous case of Echaria vs Echaria, for example, it notes that specific contribution has to be assessed towards a specific share (paragraph 78) (one wonders how that can be done for something like emotional labour, or companionship). The Court also appears to approve Echaria’s finding that the performance of “domestic duties” would not entitle a spouse to a beneficial share in the property (paragraph 83), although one expects that this proposition would certainly not be tenable within the statutory framework of the 2013 law. The overall drift of these observations appears, however, to somewhat devalue non-monetary contributions in determining beneficial interests in matrimonial property, and placing a higher burden of proof upon what will overwhelmingly be female spouses.

At the same time, however, other parts of the judgment appear to endorse a more egalitarian perspective. In paragraph 94, the Court correctly notes:

Equity further denotes that the other party, though having not contributed more resources to acquiring the property, may have nonetheless, in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property. This is what amounts to indirect contribution. Equity therefore advocates for such a party who may seem disadvantaged for failing to have the means to prove direct financial contribution not to be stopped from getting a share of the matrimonial property.

In the next paragraph (para 95), the Court notes:

Any substantial contribution by a party to a marriage that led to acquisition of matrimonial property, even though such contribution is indirect, but nevertheless has in one way or another, enabled the acquisition of such property amounts to significant contribution.

One must note the breadth of the term “in one way or another.” Indeed, in the same paragraph, the Court approvingly cites the English case of Burns vs Burns, which listed childcare and domestic work as indirect contributions (contrary to the observations in Echaria, which the Court also appears to approve of), and the judgment in White vs White, which specifically observed that “there should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

So, which of the strains of thought is dominant in the Court’s judgment? Interestingly, towards the very end, the Court considers two Canadian judgments that advanced the LSK’s proposition of a default 50% rule subject to departure in exceptional cases, and then, in paragraph 103, it notes that:

In agreeing with the above [Canadian] decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013.

Now I would submit, with respect, that this formulation brings the Supreme Court very close to the LSK’s stated position of a default rule of 50%, that a judge could depart from in cases of unconscionable circumstances. The Court does not specifically use that language, but phrases such as “general assumption” and “one way or another” do suggest that in the application, the starting point should be one of equality. For the reasons advanced above, I suggest that this is the true import of Article 45(3) and equality within marriage, in the context of transformative constitutionalism. And, what is more, the Court goes on to agree with the Court of Appeal’s 50/50 division of property in this case, and dismisses the appeal against the CoA’s judgment?

So, where do we stand? While on the one hand, it would perhaps have been ideal if the Supreme Court had laid down a clear rule that the default is equal division, with the burden lying upon the party who wishes to depart from it, there is enough in the judgment to suggest that on a case-by-case basis, that is roughly the approach that ought to be followed. In this context, the next terrain of battle will be litigation around how, precisely, one understands the term “non-monetary contributions” under the 2013 Act, and how one goes about establishing them (especially for terms such as “companionship”, because how can you possibly quantify “companionship”?). Indeed, in a brilliant judgment from 2021, the High Court of Kenya at Nakuru has already initiated this analysis, noting that childcare and domestic work entitled the female spouse to a 50% share of the matrimonial property; that needs to be carried forward. There will also be parallel struggles about the very definition of what constitutes marital property, but that is a different matter. And it will probably be in the implementation – and the future interpretation of today’s Supreme Court judgment in concrete family law disputes – that the interface between equality, marriage, and transformative constitutionalism in Kenya will play out.