Why women can no longer bank on automatic legal advantages based solely on their gender
A couple fighting. The High Court declared Section 8 of Children's Act 'presumptuous' and challenged gender stereotypes in family law.
What you need to know:
- Kenyan courts are dismantling decades of gender stereotypes in family law by rejecting the assumption that women automatically make better parents and deserve preferential treatment in custody, inheritance, and property cases.
- Recent landmark rulings have granted fathers custody rights and declared certain laws unconstitutional.
“Gender is not a synonym for women”. This was a favourite statement of an executive of an international organisation in Kenya, to remind his staff that men completed the other half of the concept.
This principle was recently demonstrated in a High Court ruling by Justice Lawrence Mugambi that Section 29(c) of the Law of Succession Act was unconstitutional and discriminatory since it required men to prove that they financially depended on their wives in order to inherit the latter, while a similar requirement was not placed on women.
This ruling reinforced other judgments which have inverted the norm of always favouring women. In the past, it was almost always automatic that if a woman filed for child custody and maintenance, she would get a favourable ruling. The assumption was that women were the best placed to assure the child’s best interests, and that they were men’s automatic dependents, regardless of their personal economic standing.
In one ruling in 2019, Justice Joel Ngugiof the Nakuru High Court gave the father physical custody of his children, aged 8 and 15, upsetting the stereotype of women as the natural caregivers. The court indeed pointed out that caregiving is a gender role, not biological one, hence it can be carried out by either sexes and did not inhere in one to the exclusion of the other. The man had appealed a ruling by a lower court which had observed that he could not be given custody because he was busy fending for the family.
Justice Ngugi averred that being a breadwinner is not a deterrent to caregiving and that men could not be consigned to just that one role. “With tremendous respect, I find this reasoning to be dangerously problematic”, he said. “Relying on stereotypes to reach a verdict on an individual and specific case is unfair to the parties concerned”. He, thus, emphasised the principle of joint decision making and responsibility for the child’s education, health and development whether the custody was legal or actual. Ngugi’s ruling negated Section 8 of the Children’s Act which provides that custody of a child under 10 years is given to the mother unless there is a compelling reason to not do so. He declared this presumptuous and misguided.
Supervised visits
In another case in 2023, a Kenyan-American engineer was granted sole custody in both Kenyan and American courts. The man convinced the courts that the wife was cruel and negligent hence could not ensure the best interests of the child. The wife was allowed only 30-minutes of supervised visits, after giving 14 days’ notice.
A Nairobi court also ruled that both parents would have joint legal custody of their children with the father having superior rights to access his children who would be in the wife’s physical care. In this case, the court underscored the importance of both parents being present in their children’s lives.
In May 2020, the High Court dismissed the petitions of a woman who contested a lower court’s ruling giving the man superior access even though she had physical custody. The court ruled that the father would fully access the child on alternate weekends and during half of school holidays. It also ordered both parents to personally transport the child to and from school even if they did not like each other.
Division of matrimonial property also comes in. The issue was contested in the 11th Parliament with male legislators prevailing that dividing property equally would disadvantage men, who usually finance the acquisition and maintenance of the assets. It would also encourage gold digging by women becoming serial divorcees just so as to acquire property. The same exploitative behaviour arises where men would be required to maintain a child and estranged wife enjoying life with another man even when the husband had less income.
Parliament eventually settled on a provision that a spouse should prove financial contribution in order to determine his/her share of matrimonial property. Nevertheless, it mandated recognition of the women’s non-financial contribution given the reality that a lot of wives still play the homemaking role, which sustains the man in his financial quests that eventually translate into property acquisition. In reality, therefore, the greater onus is on women to prove their contribution.
The judgments favouring men demonstrate the need for legal literacy on family law. At a recent meeting of a men’s church association, it was recognised that very many men forego their rights because of ignorance. Obviously, times have changed. Women must start getting used to the fact that they have no easy path to automatic custody of children and maintenance while men should be emboldened to claim their legal protections on similar matters.
The writer is a lecturer in Gender and Development Studies at South Eastern Kenya ([email protected]).