Matrimonial Property in the Supreme Court
Alternate Views of the Meaning of the Body
(Reading time: 15 minutes)
On 27 January 2023, the Supreme Court of Kenya issued one of its first judgments on the division of matrimonial property: JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & Law Society of Kenya (Amici Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR).
JOO (the husband) and MBO (the wife) were married under Abagusii customary law in 1990. In 1995, their union was formalized under the Marriage Act (CAP 150), which the Matrimonial Property Act has since repealed. They later acquired a plot of land on which they erected their matrimonial home and several rental units. The marriage broke down irretrievably in 2008. JOO applied to the courts for the dissolution of the marriage. MBO instituted a case in the High Court for the division of their matrimonial property in 2010.
JOO and MBO were married for 18 years. For 15 years, MBO was employed, frequently took loans to cater to their children’s school fees and took care of the home. Both the High Court and the Court of Appeal held that MBO thus acquired a right to a share – the Court of Appeal used the term “beneficial interest” – in the matrimonial property based on this. (The term “beneficial interest” is important – we will return to it later.) The Court of Appeal ordered that the matrimonial property and the rental units built on the land be shared equally between the parties.
However, JOO was dissatisfied with the decision. He claimed that the Court of Appeal applied Article 45(3) of the Constitution and provisions of the Matrimonial Property Act, 2013, even though both laws were enacted years after MBO instituted the suit in the High Court. He urged the Supreme Court to refer instead to the Married Women’s Property Act of 1882, the applicable statute at the time. The respondent, on the other hand, submitted that ever since the promulgation of the Constitution, Article 45(3), together with the Matrimonial Property Act, which Parliament enacted to give effect to the constitutional provision, is to be applied to all matrimonial property irrespective of the circumstances, even retroactively. Legislation is applied retroactively when it is applied to circumstances that existed before that law was enacted. While the Matrimonial Property Act acknowledges that a spouse may make a non-monetary contribution to the purchase of property, the Married Women’s Property Act, as interpreted in Echaria v Echaria [2007] eKLR, seems to recognize only financial contributions. This was the source of the contention.
The Supreme Court addressed several issues:
i. Whether Article 45(3) of the Constitution and the Matrimonial Property Act can be applied retroactively, and
ii. Whether Article 45(3) of the Constitution implies a redistribution of proprietary rights at the dissolution of a marriage
According to a five-judge bench of the Supreme Court, legislation other than the Constitution can only be applied retroactively when the statute’s phrasing indicates that Parliament intended retroactive application. This does not seem to be the case with the Matrimonial Property Act. However, a constitution like ours, which seeks to reform the entire social order, may be interpreted retroactively. Therefore, the Supreme Court held that the Married Women’s Property Act will apply to suits instituted before the Matrimonial Property Act came into force,1 as would Article 45(3) of the Constitution.
As for the meaning of Article 45(3) of the Constitution for the distribution of matrimonial property, the court interpreted it as providing for an equality of the right to own property rather than an equal right to all property acquired during the marriage. Each spouse, for example, has a right to purchase land on their own account during the marriage; but that does not mean that each spouse has a right to half of what the other bought. Upon the dissolution of a marriage, the property is to be distributed according to the contribution, monetary or otherwise, made by each spouse to its acquisition, as was held in Echaria v Echaria [2007] eKLR.
As is explained below, the nature of marriage means that the question of matrimonial property is a thorny one: how should property be divided when a marriage, by nature, cannot break apart? Yet, it is possible to recognize - or fail to recognize - this truth to some extent even in a matrimonial property regime of law. This is precisely what the Supreme Court failed to do. At the heart of the Supreme Court’s judgment lie conflicting notions of property and marriage, giving rise to divergent notions of matrimonial property. The Supreme Court and the Court of Appeal use terms falling on either side of this divide when ruling on the appropriate distribution of matrimonial property. The realities these terms signify remain the same, regardless of the actual opinions of the judges who used them. On the one hand, the Supreme Court emphasizes that matrimonial property should be distributed according to the contribution made by each spouse to its acquisition. On the other hand, the Court of Appeal refers to the involvement of each spouse as giving rise to a beneficial interest in the matrimonial property. This is a difference of significant import.
The Body as the Truest Instance of Property
The Supreme Court’s use of the term “contribution” implies the exchange of resources by one or both spouses for property. The spouses contribute, directly or not, to acquiring resources for this exchange. Their separate contributions entitle each of them to a separable right in the acquired property – more precisely, a right to use the property and to exclude others from its use.
The approach of the Court of Appeal to matrimonial property in this case is strikingly different. The Court of Appeal issued its judgment on 23 February 2018, nearly 5 years before the Supreme Court issued its decision. The 7-page verdict, though light on analysis, is nevertheless rich. Through a very brief overview of its rulings predating the Matrimonial Property Act, the court demonstrates that both the old and the new family law regimes consider the contributions of each spouse in distributing matrimonial property. However, while the Supreme Court took the ratio of their contributions as a determinant of the proportion in which to distribute the property, the Court of Appeal instead treated contributions as proof that the spouses have a beneficial interest in the matrimonial property. The court cited the case of Karanja v Karanja [1976] as the source of this principle. In fact, according to the Court of Appeal, it has since applied this principle consistently in its decisions. The contribution of either spouse, be it direct or not, indicates that the property was acquired as a “joint venture”, to use the terms of Karanja v Karanja [1976]. Accordingly, property registered in one spouse’s name is held at least partly in trust for the other. As for the proportion of distribution, this is determined not by the quantity of each spouse’s contribution, but rather by what is fair and what the dignity of each person demands. If the court treated the property rights of the spouses like the rights of parties to the assets of a business partnership, this would negate the trust that, to quote the court, “is the cornerstone of marriage unions.” Thus, we touch on the essential difference. While the Supreme Court seems to portray marriage almost as a business partnership, the Court of Appeal describes marriage in terms that appear more proper to an unconditional union.
Here, it would be appropriate to consider what property is and its place in a marriage. In the modern context, we commonly think of property as a thing that we have the right to use without restraint (at least, in principle), and from which we have the right to exclude others.2 Things that we own are surrounded, figuratively speaking (or even literally!),3 by a fence. We have a right to use whatever is on our side of the fence however we want, provided that we don’t interfere with other people’s capacity to do the same. Our property is our own, and we decide what to do with it. Like our own purpose, the purpose of our property is up to us to decide. The spirit of these words of the U.S. Supreme Court’s Justice Anthony Kennedy continues to resound even now – and increasingly, even here: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”4
At the heart of this notion of property is an idea of freedom that we cannot fully understand without considering the relationship between property and the body. If property implies the right to exclusive use of a thing, then the body is the truest instance of property. No one can exclude me from my body and experience it in the same way as I do. Additionally, we can only interact with the things that we call property in and through the body, almost as if our ownership of property is an extension of our relationship with our bodies to those things. The slogan “My body, my choice!” has long been in vogue. However, we hesitate to think of the body as property because we are convinced we should not use it without restraint. What is more, we hold this conviction not out of regard for the freedom of third parties, but rather because the body seems to bear a certain dignity that makes it objectionable to treat it as a commodity. We hesitate to permit the sale of human blood or organs not because we think it will make other people unable to use their bodies but rather because we are deeply convinced that human blood and organs are not at the same level as water and mangoes, or even hospital equipment.5 And we hold this conviction because, for the most part, we are aware that letting people trade their body parts to their own detriment is like putting those people themselves on the market, reducing them to objects of sale, of use. We would be reducing those people to tools. Yet all of this is implied by a statement that seems true: the body is the truest instance of property.
The problem lies in our understanding of property. If the body is the truest instance of property, then we should amend our conception of property to match our experience of the body. We experience the body as bearing dignity, demanding respect, because, though a person is not only his body, he is his body. There is an identity that we recognize between a person and his body. If you accidentally step on a woman’s foot and tell her, “I am sorry I stepped on your foot”, you do not mean it as you mean the words, “I am sorry I scratched your car.” We can phrase the first sentence as “I am sorry I hurt you” and mean the same thing; we cannot do the same with the second. Therefore, our experience of others as bearing dignity, also in their bodies, is an experience that our freedom is meant for aims that we do not define. Our freedom is meant for purposes that we instead discover – including affirming the worth or dignity of others. Moreover, this means that our bodies are meant for those aims, as is the property we possess through our bodies. Our property, like our freedom, is meant for others, and this is made manifest in our experience of the body.
But what does marriage mean for the body – and therefore, what does marriage mean for property? Is marriage more like a business partnership, an arrangement for convenience? Or is marriage unconditional? Considering what we have said about the purpose of the person as being to affirm the worth or dignity of others, we arrive at a criterion that can enable us to answer these questions. Does marriage affirm the worth or dignity of the person when conceived of as a conditional union, or as an unconditional one?
Once we have answered this question, we can evaluate the different approaches taken by the Supreme Court and the Court of Appeal to matrimonial property. Each approach implies an understanding of the body, marriage, and property that is of momentous significance.
An Unconditional Union of Bodies and Property: The Language of “Beneficial Interest”
So far, we have seen that, at first glance, the Supreme Court and the Court of Appeal seem to take similar approaches to redistributing matrimonial property. The Court of Appeal held that the contributions of spouses to acquiring matrimonial property act as proof that each has a beneficial interest in that property, which the court would distribute according to what it deemed fair; the Supreme Court went a step further and declared that at the dissolution of a marriage, it would distribute the matrimonial property according to the proportion of the spouses’ contributions. The Supreme Court’s judgment may not exclude the ruling of the Court of Appeal. Indeed, one may construe the lower court’s verdict as invoking the Judiciary’s constitutional power to exercise its discretion in the interests of justice. It would not be difficult at all to see room for the exercise of just such discretion in the judgment of the Supreme Court. However, on second glance, it becomes clear that the approaches of both courts manifest (albeit imperfectly) disparate perspectives on property, the bodies through which we possess that property, and most importantly, the implications of marriage for the body and property. While the Supreme Court seems to portray marriage almost as a business partnership, the Court of Appeal describes marriage in terms that appear more proper to an unconditional union.
The question posed at the end of the second part of the article will be the starting point for our reflections in this final part: Does marriage affirm the worth or dignity of the person when conceived of as a conditional union or an unconditional one? To answer this question, we must first consider the nature and experience of sexuality and the sexual act.6
Among other things, our experience of sexuality is marked strongly by shame, an awareness that we are susceptible to being reduced, in the eyes of the other and through one’s body, into an object for use – or that we can reduce others to objects for use in this way. And yet, at the same time, there is also the possibility of accepting the other as they are, also through their body. There is an awareness that the body can be a path for profound humiliation or affirmation of the person’s worth through how we see the other person in and through their body. There is a definite identity between the person and his body. Though he is not only his body, he is his body. Moreover, the person experiences his sexuality as a specific and unparalleled route to the intimacy of his person, to his intimate depths. Therefore, the person must be treated not as an object for use but as an object of love in and through the body and, importantly, in and through his sexuality.
In his or her body, the person is oriented toward another person of the opposite sex as an embodied person.7 The other is attractive in their physiological, psychological, and personal dimensions. If we separate the physiological from the personal and pursue it on its own, then the other becomes an object from which to derive pleasure or solely a means for bearing children. The other is not received in their entirety but is instead reduced only to a part – an object for use. Should we instead pursue the psychological exclusively, the other would become an object for emotional satisfaction –this is consistent with an incredible number of forms of manipulation. The other must be received entirely, in a union without conditions, that holds nothing back, or else they reduce each other (and themselves) to objects for use, which they most certainly are not. And because of the intimacy of sexuality, just such an unconditional union is expressed in the sexual act, regardless of their intentions. Either the parties to that act distance themselves from their bodies and convert themselves into tools, or they conform their intention to this objective fact and thus receive each other. Each gives themselves to the other without conditions. And through marriage, the two are socially recognized as belonging to each other. The institution of marriage proclaims to the world the union existing between this man and this woman: they are no longer two, but one, even in their bodies.8
Our earlier considerations about the relationship between the body and property become germane at this point. As we said in the second part of this article, the body is the truest instance of property. Expanding on this, we can say that we possess property only through our bodies. Our relationship with the property we own is an extension of our relationship with our bodies to the things we own. For example, a woman lives in a house and furnishes it according to her tastes because she first lives in her body, so to speak, and adorns it with elegant clothes. You could almost say that she makes the house an extension of her body.9 And if, in marriage, a man and a woman give themselves entirely and unconditionally to each other in and through the body, they also give entirely and unconditionally all that is theirs to give – including the property that they possess through their bodies. Matrimonial property, then, is the property that belongs to each spouse just as totally as each spouse belongs to each other because of the nature of marriage. The matrimonial property belongs entirely to each spouse. The law may not recognize this, but it should, because it is a fact. While it would be intriguing to spell out the implications of this for the Matrimonial Property Act (or even the Marriage Act), that lies beyond the scope of this article. Now we must return our attention to the decisions of the Supreme Court and the Court of Appeal with which we began these considerations.
If the matrimonial property belongs entirely to each spouse, it is simply incorrect to speak of them owning the property in “proportions” as the Supreme Court did. The proportion proper to each spouse is the whole. And while it is true that some people may actively mistreat, manipulate, or exploit their spouses, these problems are properly dealt with according to the logic of self-gift that animates the union of marriage. What a man has given does not belong to him anymore. He cannot demand that his wife return the property he has given away. What can happen is that the other party is incapable of receiving or unwilling to receive the gift. For instance, it may happen that, through violence, a man neither accepts his wife as she is nor treats the matrimonial home as a home to which each person belongs, and he has to be expelled from that place. But should he repent and make amends sufficiently, the door to the home must remain open.
The language of “beneficial interest” used by the Court of Appeal is much more in keeping with the reality we have described so far. To some degree, the Court of Appeal treats matrimonial property as “given away”. Because both spouses “contribute to its acquisition” – because acquiring the property is, in some measure, a manifestation of the mutual gift of self to each other that marriage is, whether by working and providing for the sustenance of the family or by caring for the family, by “monetary or non-monetary contributions” – the property exists for the benefit of both spouses, even when registered in the name of only one of them.
The Matrimonial Property Act came into force on 16 January 2014.
There is a debate about whether property is the thing itself or instead the right to it. Quite a few people, perhaps especially in legal circles, consider property as a “bundle of rights”, i.e., relations between people about things. However, the common sense understanding of property that most Kenyans seem to have is that described in the text. See Schindler, D.C. (2019). The Politics of the Real: The Church Between Liberalism and Integralism. New Polity Press: Steubenville, Ohio.
In anecdotes, many older Nairobians will note that the abundance of fences around houses and grilles on windows is a recent phenomenon. The relationship between this change and the view of marriage proposed by the Supreme Court will become clearer later in the text.
Planned Parenthood vs Casey (1992) (Supreme Court of the United States).
Render, M.M. (2013). “The Law of the Body”, Emory Law Review 62(3), pp.549-605.
The reflections in this section are based on: Wojtyła, K. (2013). Love and Responsibility. Ignatik, G.(trans.), Pauline Books and Media: Boston, Massachusetts; von Hildebrand, D. (2017). In Defense of Purity. Translated by the Dietrich von Hildebrand Legacy Project (6th edition). Hildebrand Press: Steubenville, Ohio.
The question of same-sex attraction is complex. Yet, regardless of its origins, same-sex attraction seems to denote a desire for a bodily union that, ultimately, reduces the bodies of the persons involved to objects of physical or psychological pleasure, even if the parties subjectively intend that the union express some form of love or lasting commitment. See Lee, P. and George, R.P. (2008). Body-Self Dualism in Contemporary Ethics and Politics. Cambridge University Press: New York. At pp. 176-197.
In this way, the institution of marriage makes the couple affirm their commitment to each other as true – because it would not be true if they refused to view it as being true when in the presence of others.
So far, the discussion on the nature of property has left intangible property unaddressed. However, we must note that intangible property is ultimately reducible to tangible property. “Intangible property” is identical to contractual relations with people. When all is said and done, contractual relations are rights to receive (and duties to give) something tangible – whether hard currency or goods. For example, the amount in one’s bank account is a right to receive that sum of hard money from the bank on demand. Though this may seem an oversimplification, it nevertheless captures the essential. These contractual relations, then, are but a (remote) way of owning tangible property, of being entitled to interact directly with tangible property. In the final analysis, these contractual relations are based on our relationship with our bodies. “Intangible property” refers to a more distant extension of a person’s bodily relationship to a thing – for we can only interact with tangible property in and through the body.