Kenya’s Supreme Court has ruled that divorcing couples are not automatically entitled to 50 per cent share of matrimonial property. The landmark ruling seems to have now settled a very contentious issues in Kenya’s Family Law, local media reported.
According to the judges, the 50:50 formula is not absolutely, applicable during divorce and that each party should now leave the marriage with property they separately acquired. But a couple may get more during divorce if their contribution to the acquisition of the matrimonial wealth is evident.
The five-judge bench led by deputy chief justice Philomena Mwilu also held that each partner in marriage must prove his or her contribution to the family wealth.
That is the only way the court can determine the percentage available to each one at distribution of the matrimonial property at the time of divorce, the panel ruled.
The latest ruling should shape legal squabbles between ex-spouses on split of wealth when they dissolve their marriages.
“While Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during 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% share by the fact of being married,” the apex court said.
The court held that though Article 45(3) provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage that does not mean an absolute division of 50: 50 to be used as a matrix in the distribution of property.
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“What amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at 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,” the court said.
The court held that equality in the marriage does not mean 50:50 sharing of the property upon divorce but that the distribution should be based on everyone’s contribution towards acquisition of assets and prove of the same.
The contribution may be direct, such as financially or indirectly such as running of the welfare of the home and easing the burden of the spouse paying for the property or caring for children and the family at large as the other spouse works to earn money to pay for the property.
The judgment was made following a fight between two ex-Kenyan couples, Mr Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori.
They were married under Abagusii customary law in 1990 and on August 30, 1995 their union was formalised under the repealed Marriage Act. They divorced in 2008 after their marriage became broke down.
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