The Supreme Court of Kenya has ruled that what a person contributed to their marriage is what they will take in the event of a divorce, abolishing the law of “50:50 division of matrimonial properties”.
TheNewsGuru.com (TNG) reports the Supreme Court of Kenya passed the landmark ruling on Friday, January 27 in a divorce dispute between Joseph Ombogi Ogentoto and his ex-wife, Martha Bosibori.
Ogentoto took the matter to the Supreme Court after a Court of Appeal ordered that the house in which he had lived with his ex-wife of 18 years and the rental units be shared equally between them on a 50:50 ratio.
The Court of Appeal had ordered the complainant, Ogentoto to share his properties on a 50:50 ratio with Bosibori in 2018. He argued that Bosibori had not contributed anything towards the acquisition of the properties.
To sum up their resolutions, the five-judge bench led by deputy chief justice Philomena Mwilu ruled that implying that matrimonial wealth should be automatically shared at a ratio of 50:50 would bring huge difficulties within marriages.
This is opposed to the controversial traditional assumption that one was entitled to a 50 per cent share.
According to them, such a precedent would 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 judges also held that each partner in marriage must prove his or her contribution to the family wealth to enable a court to determine the percentage available to him or her at the distribution of the matrimonial property.
The judge had listed roles that would qualify a spouse as one who has contributed to the wealth in question.
This includes: contributing to the purchase price of the matrimonial property, contributing regularly to the monthly payments in the acquisition of such property and making a substantial financial contribution to the family expenses so as to enable the mortgage instalments to be paid.
Others are contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property and caring for children and the family at large as the other spouse works to earn money to pay for the property.
The Friday Supreme Court decision will, moving forward, act as the guidelines for the distribution of matrimonial property between divorced spouses.
