The Supreme Court has ruled that spouses are not automatically entitled to a 50/50 share of the matrimonial property during dissolution of a marriage.
In a landmark ruling that will henceforth be used as a law on how to split property in divorce cases by lower courts, the Supreme Court said that should a marriage end each partner should leave with the property that they acquired individually.
The petition at the apex court arose from a divorce dispute between Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori.
Ogentoto took the matter to the Supreme Court after the 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 ruling said while Article 45 (3) of the Constitution deals with equality of the fundamental rights of spouses during the 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 percent share by fact of being married.
The court also said that each party must prove contribution to enable a court to determine the percentage available to him or her at distribution of matrimonial property and that the test to determine the extent of contribution is one on a case-to-case basis.
“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 explained.
The courts have been struggling on the question of whether spouses should split matrimonial property equally upon divorce, and the issue is also pending determination at the Supreme Court.
According to Kenya’s Matrimonial Property Act (2013), “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”