Financial and property rights of women in marriage and post divorce in Kenya: a comparative study with Malaysian law

Abstract

This thesis examines the financial and property rights of women in marriage and post divorce in Kenya with comparisons made with Malaysian law. Three different laws that govern women financial and property rights are examined. The strengths and weaknesses of the African Customary law and statutory provisions were discussed to identify legal measures for future reform. Islamic law which is an applicable law for Muslims is discussed to provide measures for reform and its relevancy to legal issues concerning Muslim women. The study adopts both library and field research in developing legal framework for women’s legal protection in the absence of legal writings on this subject matter by using textual and content analyses of statutory laws and decided cases. The study on decided cases on property rights, in particular, portray absence of provisions regulating division of matrimonial property while inheritance provisions as well as financial rights provisions are inadequate enough to cater for the interest of women. Interview are conducted and materials collected to know how financial and property rights problems for women are settled in Kenya. A comparative study is done with Malaysia law on legal provisions for financial and property rights for both Muslims and non-Muslims in seeking for a suitable model to be followed in the Kenyan legal system. Detail analysis of the statutory provisions governing the subject matter proves comprehensiveness of the provisions. Decided cases are also analyzed to show how these provisions are put into practice by the courts to reach fair and just rulings. The presence of Muslim and non-Muslim populations makes it appropriate, where circumstances of the local inhabitants of Kenya allow, to emulate from the practice of law in Malaysia. In conclusion, the study is able to establish the existence of conflict between African customary law and statutory provisions with regard to women’s rights in the country. A radical awareness is growing towards women’s familiarization with their financial and property rights. A lot has been done by Kenyan legislature due to pressure from international laws and treaties to amend those laws which discriminate against women. Indeed the new constitution of 2010 is a fruit of such pressure and it holds a lot of hope for women