Supreme court rules out 50:50 sharing of matrimonial wealth after divorce
Spouses will not get an equal share of their matrimonial property after a divorce if no proof of one’s contribution to the purchase of the assets is given, the Supreme Court has ruled.
While quashing the 50:50 formula, the court stated that in case of a divorce, each party should leave the marriage with the property he or she acquired during the union.
The court also held that each partner in marriage must prove his or her contribution in the family wealth to enable a court determine the percentage available to him or her at distribution of the matrimonial property.
The court said the test to determine the extent of a party is one of a case-by case basis.
The five judge bench led by Deputy Chief Justice Philomena Mwilu ruled that the provisions of Article 45(3) of the constitution on equality in a marriage do not entitle any court to vary existing proprietary rights of parties.
“While Article 45(3) of the Constitution deals with equality at the time of dissolution of a marriage, such equality does not mean the redistribution of proprietary rights or an assumption that spouses are automatically entitled to a 50 percent share by fact of being married,” said the court.
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.
The judges also said 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.
The judgement was based on a 13-year-old battle between two divorced couples, one Joseph Ombogi Ogentoto and Martha Bosibori.
They were married under Abagusii customary law in 1990 and formalised their union on August 30,1995 under the repealed Marriage Act.
They later separated in 2008 and Ombogi moved to the Supreme Court after the Court of Appeal ordered that the house which he had lived with his ex-wife of 18 years and the rental units be shared equally between them at the ratio of 50:50.
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.
