Spouses will have to prove their contribution to the court to enable the determination of the percentage available for each party during the distribution of matrimonial property.
The Supreme Court said Friday the spouses are not automatically entitled to a 50 percent share by the fact of being married.
“That a party must prove contribution to enable a court to determine the percentage available to it at the distribution of matrimonial property and that the test to determine the extent of contribution is one of a case to case basis,” the apex court said.
“That 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% share by the fact of being married.”
The top court said that in case of divorce, each party should leave the marriage with the property he or she acquired during the union though a spouse may get more based on his or her contribution to the acquisition of the matrimonial wealth.
The five-judge bench led by deputy chief justice Philomena Mwilude, Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and Isaac Lenaola said that the test to determine the extent of contribution of a party is one of a case-to-case basis.
This means that the provisions of Article 45(3) of the Constitution on equality in a marriage do not entitle any court to vary the existing proprietary rights of parties. Instead, the court says the provisions only act as a means of providing for equality at the time of dissolution of marriage with each party being entitled to their fair share of matrimonial property, said the court.
“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 the fact of being married.”
The court clarified Article 45 (3) which provides married people equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage that does not mean an absolute division of 50: 50 to be used as a matrix in the distribution of property.
“What amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at the 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 judgment emanated from a 13-year-old fight between Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori.
They were married under Abagusii customary law in 1990 and on 30th August 1995.
During their marriage, they acquired a home at Tassia Estate within Embakasi in Nairobi and constructed rental units on the property.
In 2008, the marriage irrevocably broke down and the marriage was therefore dissolved.
Ogentoto moved to the Supreme Court after the Court of Appeal ordered that the house 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 High Court awarded Bosibori 30% of the share in the matrimonial home and a 20% share in the rental units.
Bosibori appealed after being aggrieved by the orders in the High Court.
The Court of Appeal while taking note of the provisions of Article 45(3) of the Constitution found that the respondent had acquired a beneficial interest in the matrimonial property, having been married to the appellant for 18 years, and therefore ordered that the matrimonial property and the rental units in the property be shared equally between the appellant and respondent.
The five-bench judge agreed 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”.
“Again, and further to this, both spouses may also work and earn income, which inevitably, in most instances, always ends up being spent on the family unit. It may be the whole income or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013,” said the judges.