The MWPA: is there a case for enactment of a matrimonial property act in Kenya?

Abstract

This Paper is an examination of the place and relevance of section 17 of the Married Women's Property Act, 1882 after the granting of divorce. It traces the developments of the law in England, from whence the Act of 1882 originated, up to 1973 and also examines the principles requisite for a just and equitable family law to be in place. The paper likewise discusses the way in which section 17 of the Act 1882 has been applied in Kenya. The Paper concludes that the Act of 1882 is an antiquated foreign legislation that has been overtaken by the changing environment in Kenya and argues for the enactment of a Matrimonial Property Act, relevant to the situation in Kenya, and the unification and harmonization of the bifurcated systems of marriage law to ensure certainty and predictability. The Paper also argues for the repeal of section 82(4) of the Constitution of Kenya for entrenching discrimination in personal law.