Division of matrimonial property: equity versus equality

Abstract

This study examines the efficacy of the current matrimonial property regime. The new regime was introduced to replace the archaic colonial law imposed by our colonial masters in the form of the Married Women's Property Act 1882. Even decades after independence, we clung to the same law in matters of division of matrimonial property. What followed were varied and contradictory decisions on division of matrimonial property. There were those that opined that only financial contribution was to be considered as seen in cases such as Njuguna v Njuguna.Others took non-monetary contribution as adequate for a claim, as seen in Kivuitu v Kivuitu.There was need for stability, which was to be provided by the 2010 Constitution, Marriage Act 2014 and Matrimonial Property Act 2013. The dissertation therefore attempts to establish whether this in fact was achieved, as we observe that Sections in the Matrimonial Property Act to a large extent take us back to the era of uncertainty that characterized the Pre-20 10 Constitution period.