Divorcing couples must prove contribution for equal property share

The Supreme Court of Kenya in this picture taken on October 16, 2022. PHOTO | LUCY WANJIRU | NMG

The Supreme Court has ruled that a party- in a marriage- must prove contribution to enable a court to determine the percentage available to them for distribution of matrimonial property where there is divorce. 

The court also said the test to determine the extent of contribution is one on a case-to-case basis. 

The top court judges said while Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during the dissolution of a marriage, such equality does not mean the re-distribution of proprietary rights or an assumption that spouses are automatically entitled to a 50 percent share by the fact of being married.

In the dispute, a man identified as JOO was fighting over the distribution of property against his former wife MBO.

In February 2017, the High Court delivered a judgment where it awarded the woman (MBO) a share of 30 percent of the matrimonial home in Tassia Estate and a 20 percent share of the rental units, even though it had found that she did not contribute towards acquisition and development of the property.

The man challenged the decision in February 2018, and the Court of Appeal overturned the decision of the High Court and directed the matrimonial house and the rental units to be shared equally between the couple.

Section 7 of the matrimonial Property Act states that; “Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

FIDA challenged the said section in 2018, arguing that parties to a marriage are entitled to equal rights as per the constitution. 

The petition was, however, dismissed by the High Court stating that if the request was allowed, it would create a “loophole for fortune seekers” to benefit from their spouse’s success in case of a divorce.

In February 2018, the Court of Appeal ruled in a different case that properties acquired during the marriage should be shared on a 50:50 basis. 

The man, who felt slighted, moved to the Supreme Court and convinced the judges of the top court to settle the matter. 

Section 7 of the matrimonial Property Act states that; “Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

“That a party must prove contribution to enable a court to determine the percentage available to it at the distribution of matrimonial property and that the test to determine the extent of contribution is one of a case to case basis,” the judges said.

The judges said what amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at the dissolution of a marriage and whether the same can be achieved by a fixed means of apportionment at a 50:50 ratio should be done in light of the circumstances of each individual case. 

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