- The Supreme Court decision was based on a case in which a couple who had been in court over the distribution of property were given 50:50 rights to the property.
- This came after the court said it was convinced with the former wife's evidence that she took loans and contributed to the purchase of matrimonial property and rental units.
Image: FILE
You will not get a share of your matrimonial property after divorce if you do not prove you contributed to the purchase of the assets.
In a landmark ruling, the Supreme Court quashed the popularly held notion that marital property should be shared equally.
After divorce the husband and wife will leave the marriage with only a percentage of what they contributed in the marriage.
However, if you can prove, with evidence, you contributed a certain percentage, then the court will hand you property equivalent to your share.
In effect, the court has moved to punish lazy partners who do nothing but hope to reap where they did not sow.
Parties hoping to cite indirect contributions, such as house chores, raising of children and mowing the lawn will stand on shaky grounds.
The Supreme Court decision was based on a case in which a couple who had been in court over the distribution of property were given 50:50 rights to the property.
This came after the court said it was convinced with the former wife's evidence that she took loans and contributed to the purchase of matrimonial property and rental units.
The court quashed an automatic 50:50 rule that has been the norm in most cases when divorced couples share matrimonial property.
The court ruled that allowing the 50:50 rule with the current changing times would encourage some parties to enter marriage with nothing, then not contribute anything but wait to automatically be given 50 per cent of property.
“It is our finding that the stated equality under Article 45(3) means that the courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution,” the court ruled.
The judges said the best way to do this is by considering the respective contribution of each party to ensure no party is unfairly denied what they deserve and ensuring that no party is unfairly given more than what he or she contributed.
It was also their view 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.
They said that both spouses may also work and earn an income, which inevitably, in most instances, always ends up being spent on the family.
They added that it may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family.
“Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution,” the court ruled.
The court further held that to hold that Article 45(3) has the meaning of declaring that property should be automatically shared in the ratio of 50:50 would bring huge difficulties within marriages.
Speaking to the Star, lawyer Danstan Omari said the judgment has raised a lot of controversy on whether it is automatic for one to get half of the property upon dissolution of marriage.
He says Article 45 essentially says parties at the time of marriage, during marriage and at the dissolution are equal, but that does not mean you get an automatic 50:50 share.
Omari says the contributions here may be indirect or direct. He says indirect is so elastic ‘it is whoever claims that I have contributed indirectly to prove that to court’.
“This can be in tending and taking care of that property, the question of child care nurturing and birth which is contribution,” he said.
Omari says that the duties of a wife and a husband should be monetised which can be in the aspect of conjugal rights, consolation, encouragement and all that is indirect contribution.
“There is nobody who does not contribute anything in marriage even if the husband is not a provider, he has provided his last name,” he says.
Omari says that the burden of proof of what you have contributed lies with the person who says they contributed to prove that they did.
"But if mischievous people enter into marriage for sole purpose of filing a divorce and going of division of property you will not be allowed to have a coin,” he says.
Omari gives an example of a foreigner who comes to Kenya and marries a Kenyan woman and after three days she files for divorce and later division of property, that person will walk out with nothing because she has not contributed.
“Is this an affront to women? Is it depriving women of what they are entitled to? I believe that it's only affirming that both women and men are equal,” he says
Omari claims that some women are educated and have the same qualifications and even earn and contribute than the husband but when it comes to division of property, they want to play the I'm weak card to convince the court
He adds that everybody is endowed with the capacity to participate and be a contributor to marriage.
This means that passengers in a marriage will not be rewarded for spectating.
“This judgment is a wake up call to women that they will not be given things in appreciation, they will not be entitled to it. They have to work hard for it and also the male parasites who are marrying career women to get their wealth,” he said.
Family lawyer Anitah Masaki praised the judgement, saying it was fair.
Masaki says Kenyans are not accustomed to pre-nups and that it will stop what she says are ‘gold diggers’ from thinking that they can walk into a marriage with nothing, and walk out with 50 per cent.
“We have seen so many women and men being taken advantage of because of misinterpretation of the law on matrimonial property,” she says.
Masaki says according to the judgment, if you cannot show contribution then you will not be entitled to anything. She says contribution is not always monetary and can be indirect or direct.
“I think people thought that being equal they misinterpreted it to mean that they can get 50:50 but the law says it’s not an automatic 50:50,” she says.