Kenya’s Supreme court has abolished the law that allows for the division of matrimonial properties in the event of a divorce. In other words, couples who divorced are no longer by default, entitled to a 50 percent share of property in case of a divorce. This ruling was given by the five-man Supreme Court judges.
This law, however, provides for cases where the partner is a contributor to the wealth. The judges said the spouses will have to prove their contribution to the matrimonial property amassed before sharing in the event of a divorce.
The five judges used the maxim of equity and equality to get to this ruling, interpreting article 4 of the Constitution on the rights of spouses in marriage. 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 acquire the property.” Consequently, spouses who do not have a direct monetary contribution towards a family’s wealth but help with the roles commonly referred to as household chores could still rightfully demand a share of the wealth.” Their judgment was anchored on various decisions made by courts in other jurisdictions which they used to inform their final ruling. One of the cases cited by the judges is one made by Lord Justice Fox in Burns v Burns in 1984.
The judges ruled that implying that matrimonial wealth should be automatically shared at the ratio of 50/ will bring huge difficulties within marriages as such precedent will encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property.
The ruling came after a complainant sought invalidation of a ruling made by the country’s Court of Appeal where the court had ordered him to share his property on a 50/50 ratio with his wife back in 2018. The complainant argued that his wife had not contributed anything towards the acquisition of their house.
A respondent who chose to remain anonymous has stated that “As a rule of life, everything that has an advantage has a disadvantage, this also applies to the 50/50 property sharing in the event of a divorce. Some people enter into a marriage with the intention of leaving with half of their partner’s wealth, leaving the partner vulnerable. Many people cannot leave a miserable marriage because they are scared of giving up half of their sweat and hard work.”
The ruling protects every party in the marriage and prevents greedy people from going into marriages for their selfish desires.