Quantifying The Unquantifiable

Feminist Economics and the quantification of Unpaid Care Work in Kenya

Abstract

The Matrimonial Property Act of Kenya (2013) recognizes non-monetary contribution (NMC) as a legitimate form of spousal contribution to the family’s wealth and property. This recognition is particularly significant in the division of property upon dissolution of marriage. However, the Act provides no guidance on how NMC, often manifesting as unpaid care work (UCW), should be valued or quantified. Drawing on the Feminist Economic Theory, which underscores the economic significance of UCW and critiques its systemic undervaluation, this article argues for its formal recognition and quantification in matrimonial disputes. Through content analysis of Kenyan jurisprudence, the article identifies three emerging schools of thought: Progressive Jurisprudence, Equality Jurisprudence, and Oppressive Jurisprudence that reflect judicial attempts to grapple with the valuation of NMC. It further examines three quantification models from U.S. legal practice: the Opportunity Cost Method, the Market Replacement Method, and the Dissolution of Partnership Approach as potential frameworks for Kenya’s judiciary. The paper analyses the strengths and limitations of each model and concludes that the choice of method must be context-specific, considering the country’s economic conditions, the socio-educational background of the nonfinancially contributing spouse, and the nature of the UCW performed. Ultimately, the paper calls for legislative reform to guide courts in equitably valuing NMC and affirming the economic worth of unpaid care work.