18th November 2022
MEDIA RELEASE ON THE COURT OF APPPEAL DECISION IN ABAYO JOSEPH WAIGO V ASERUA JACKLINE
The Women’s Probono Initiative has analyzed the recent Court of Appeal judgement in the case of Ambayo Joseph Waigo vs. Aserua Jackline, Civil Appeal No. 100 of 2015. We acknowledge that there are some protective principles laid out in the case, however from the feminist perspective, we flinch on the decision’s regressive aspects.
This is a manifestation of a bigger issue in our legal system’s failure to address the systemic discrimination of women. We agree with the principles in law set out by the justices that marriage does not give a spouse an automatic half-share in the matrimonial property and that a spouse’s share is dependent on his or her contribution. However, it is problematic that a wide discretion is left to judges to determine what percentage a spouse’s non- monetary contribution is valued at. This all stems from gaps in our legal framework. A case in point is the distribution of matrimonial property, where our Divorce Act fails to address current issues. The divorce act was enacted in 1904 and although it has been periodically amended, largely by case law, it has never undergone a comprehensive overhaul to update it for recent times. It therefore remains archaic and colonial in nature and the effects can be seen in how judges struggle to apply principles of equality.
Feminist authors have opined that under the present divorce system in which divorce awards neither close the earnings gap nor account for the full costs of child rearing, women are asked to “meet greater demands with fewer resources” than their former husbands. In light of this, the decision has a big bearing on subtle nuances of discrimination, GBV and the indignity allotted to women’s contributions in marital relationships.
Women’s efforts in the private sphere are grossly underestimated, undervalued by and large and is not taken into consideration especially in the evolving time where women can still birth children, nurture them and still go out to earn a living.
We therefore call for the overhaul of the Marriage Act and Divorce Act to deal with current issues and move away from the colonial and archaic laws.
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