How women's property rights have evolved over time

Those who have lived through the many phases of women's rights can attest that the evolution of women's property rights has been a long and winding road, with significant milestones and setbacks along the way. Did you know that for centuries, women across the world were deprived of the right to own and control property? This was under the concept known as coverture, which denied women the opportunity to be independent and have control over their own lives.

The patriarchal assumptions underlying coverture were based on the idea that a married woman's legal identity and property rights were absorbed by her husband upon marriage. This meant that she had no separate legal existence and therefore could not enter into contracts, own property, or sue or be sued in her own name. The husband was considered to be the head of the household and responsible for the welfare of his wife and children and for this reason, had complete legal control over his wife and all her property, and would make all legal decisions on her behalf.

The doctrine of coverture was gradually dismantled and today, women enjoy legal and political rights that were unimaginable just a few decades ago in many countries around the world. This helped to pave the way for broader legal changes pertaining to women's property rights, such as the rights that Kenyan women now have in the following areas:

Right to acquire and own property

Article 40 of the Kenyan Constitution, states that "subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya." This means that every person in Kenya has the right to acquire and own land and real estate anywhere in the country, regardless of their gender, as long as they are legally able to do so.

The right of joint ownership

Women have a legal right to own property jointly with their spouses, and this right is protected under the law. When a property is owned jointly, each spouse has an equal stake in it and this provides women with a greater degree of security in the event of divorce or the death of their spouse.

Spousal overriding interest and spousal consent

Spousal overriding interest was established by section 28(a) of the Land Registration Act, 2012 and it implied that if one spouse owned a property and the other spouse was not listed on the title, the non-owning spouse still has an interest in the property. The provision was intended to ensure that non-owning spouses were not unfairly deprived of their rights in situations where the property was not jointly owned. Section 28(a) was later repealed by the Land Laws (Amendment) Act, 2016.

Nonetheless, as stated in my article posted on 26 March 2023, Regulation 23(2) of the Land Registration (General) Regulations, 2017?allows a non-owning spouse to apply to the Registrar to be included in the register as a spouse. In my view, this Regulation provides a mechanism for the non-owning spouse to be informed of any planned disposition of the property where spousal consents are required.

Prenuptial agreements

As previously discussed, prenuptial agreements are becoming more popular in Kenya as a mechanism for spouses to safeguard their assets in the case of divorce or separation.

Spousal proof of contribution towards property

Following the recent Supreme Court decision popularly referred to as the Ogentoto decision, Kenyan law now requires a spouse to prove that they made a financial or non-financial contribution to the acquisition or improvement of a property owned solely by their spouse, regardless of which spouse is registered as the owner. The non-owning spouse may not be entitled to a share of the property in the absence of such proof.

While there have been important legal changes aimed at promoting women's rights in property ownership and inheritance, there are still significant barriers that prevent women from fully realizing their property rights. One of the key challenges is the cultural practices and beliefs that limit women's access to and control over property. In some communities, women are still considered to be subordinate to men which results in practical challenges that impede their ability to fully exercise their property rights.