As spring approaches, yet another wedding invitation appears in my mailbox. Grace is now focused on her wedding dress and bridal shower, planning for her big day in June. She and her fiancé have negotiated many details including who will be invited to the wedding and what food will be served at the reception. She and her fiancé have talked about the fact that they would both like to have children one day. But like most engaged couples around the world, they haven't had a conversation about property ownership once they are married.
Because Grace and her fiancé are Kenyan, they will be living under the recently passed Matrimonial Property Act. This legislation was originally written to provide joint property rights within marriage. However, the version which was passed in Kenya last November says that in the event of divorce, marital property must be divided in accordance with the share of each spouse's contribution to the marital property. Loans and debts will be borne equally if they are for the benefit of the marriage. No one yet knows how these laws will be interpreted and how the share of contribution will be determined.
In Kenya, as in the rest of the world, women still earn less than men. On average, Kenyan women earn only 72 percent of what men earn per hour. In the U.S., for 2012, the median full-time woman worker earned just 80.9 percent of that earned by the comparable man. Regardless of where in the world, women are also much more likely than men to take time out of the labor force to raise children and thus have fewer years of full-time work. It's not surprising then that overall, they typically make smaller monetary contribution to the acquisition of household property.
The laws and social norms about marital property determine who gets what when a marriage ends, whether it is through divorce or the death of one spouse. There are three broad categories of marital property laws. On one side are laws where all property brought to the marriage or acquired within marriage becomes community property or jointly owned. So regardless of if you bought your house before or after marriage, it would belong to you and your spouse jointly. On the other side of the spectrum is the situation in which all property remains individually owned and marriage confers no rights to each others' property. This is the separation of property marital regime. In this case, if you buy a car in your name, for example, your spouse has no legal claim on it.
There are many variations in between, including partial community property in which all assets acquired during marriage (excluding inheritances) are jointly owned, but property brought to the marriage continues to be held by the one who brought it. So the house you inherit from your parents remains yours alone, but the car you buy after you are married is considered jointly-owned by the two of you.
Which of these is better? It depends. Women typically gain from having rights to marital property since they are likely to acquire less property of their own while married. Joint property rights rules recognize their non-monetary contributions to the household like the time spent preparing meals, raising children and doing laundry. On the other hand, some women and men prefer to have property of their own, whether a house, bank account or pension fund, which they fully control.
In an effort to document patterns of property ownership by men and women, The Gender Asset Gap Project collected individual level data on asset ownership in Ecuador, Ghana and Karnataka, India. In household surveys, for each asset owned by someone in the household, the respondent was asked which household member (or members) is the owner. They found that women own a much larger share of property in Ecuador, where a joint ownership laws are in place, than in either Ghana or Karnataka, where marriage does not necessarily confer joint ownership of property.
Grace and her fiancé may not want to think about divorce and how their property would be allocated if the marriage does not succeed. But they should consider this and also what happens if one of them dies unexpectedly. If he dies, will she be able to demonstrate that she contributed to the acquisition of their house? If not, his relatives will inherit it and she may be forced to move out.
These issues are not just relevant to people in Kenya. Couples in the U.S. rarely discuss money and property while they are planning a wedding. In the U.S., the laws vary by state and encompass the full range of options. Couples may have choices; when the laws do not confer rights to a spouse's property, couples may choose to title the house or the car in one name or jointly in both. In addition, even in separation of property states, courts may decide that the partner who didn't earn wages or a salary, and thus didn't purchase property in her or his own name, should be compensated when dividing property in a divorce.
People bring very different expectations about money and property to a marriage. Ask your friends who owns what within their household; you will get a wide range of answers, regardless of which laws pertain. As people increasingly marry across boundaries, whether national, cultural or economic, the range of those variations and expectations will increase.
If you are planning a wedding in the near future, have the conversations about money and property ownership. Whether you are starting your marriage with only a few dollars in your bank account or with years of savings and inherited property, initiate this conversation with your partner. And if you have been married for a long time, ask your spouse about his or her perspective on what property is jointly owned. You might be surprised by what you learn.