The law allowing a “50:50 distribution of matrimonial properties” following divorce has been repealed by Kenya’s Supreme Court.
Couples are no longer automatically entitled to a 50% share of the property in the event of a divorce as a result of the momentous decision made by the five-member Supreme Court judges.
The justices ruled that in order for spouses to get a share of the marital property after a divorce, they would need to demonstrate their contributions to its accumulation.
This is in contrast to the contentious conventional view that everyone was entitled to a 50% share.
The five justices interpreted Article 4 of the Constitution, which deals with the rights of spouses in marriage, according to the principle of equity and equality.
They decided that equality, as envisaged in the law, implies that “Contribution to the acquisition of matrimonial property may not have been done on an equal basis, as a party may have significantly contributed more in acquiring property financially as opposed to the other party.”
They said;
“A party, though having not contributed more resources while acquiring the property, may have in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property..”
Therefore, spouses who assist with jobs typically referred to as home chores but do not directly contribute financially to a family’s wealth may nevertheless be entitled to a portion of the wealth.
Their final decision was based in part on a number of judgements rendered by courts in other jurisdictions. The judges reference a case made by Lord Justice Fox in Burns v. Burns from 1984 as one of the cases.
The roles that might qualify a spouse as having contributed to the in question riches were listed by the judge.
This include;
- Contributing to purchase price of the matrimonial property
- Contributing regularly to the monthly payments in the acquisition of such property
- Making a substantial financial contribution to the family expenses so as to enable the mortgage instalments to be paid
- Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property
- Caring for children and the family at large as the other spouse works to earn money to pay for the property.
As a summary of their conclusions, the judges decided that implying that matrimonial wealth should always be split at a 50:50 ratio would cause major problems in marriages.
They claim that such a precedent would tempt some people to just get married, live luxuriously there without providing any financial or non-financial support, dissolve the marriage, and then wait to automatically receive half of the marital estate.
An excerpt of the ruling read in part;
“In agreeing with the above decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small.
“Again, and further to this, both spouses may also work and earn income, which inevitably, in most instances, always ends up being spent on the family unit. It may be the whole income or a substantial part of it, but ultimately, a percentage of it goes into the family.”
The decision was reached after a complainant sought to overturn a country’s Court of Appeal decision from 2018 that required him to split his property equally with his wife.
The complainant claimed that his wife had made no contributions to the purchase of their home.
