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Matrimonial Property in the Supreme Court – Part III: A Holistic View of Matrimonial Property

May 19, 2023by Adrian Nyiha

In the previous two parts (one & two) of this article, we summarized the judgment of the Supreme Court in JOO v MBO; FIDA-Kenya & anor (Amici Curiae) [2023] eKLR and the judgment of the Court of Appeal in the same matter 5 years earlier. At first glance, the courts 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 third and 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.[1]

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.[2] 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.[3]

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.[4] 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.

[1] 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.

[2] 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.

[3] 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.

[4] So far, the discussion on the nature of property has left intangible property unaddressed. However, we must note that intangible property is reducible to tangible property. “Intangible property” is identical to contractual relations with people. Contractual relations are ultimately 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.

Adrian Nyiha

LLB Hons, Strathmore University and a legal assistant at Nyiha, Mukoma & Co. Advocates.

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