Do I have a share in my ex-husband’s retirement money?

Hi Eric,

My husband and I got divorced a while back. He is about to retire and the company he works for will give him a nice compensation package. My question is, am I entitled to a share of his retirement money?

Hi,

All relationships have a beginning and an end. Commencement of any, especially that of marriage is often deliberate and voluntary but the ending is never definite on when, where, how and why. In their simplest manifestation, relationships are contracts that oblige the parties on what to do and not to do.

Sometimes, such simple contracts even spell out how the to-do has to be done. Even then, some concerns raised on the subject of divorce sound like anticipatory outcomes of business opportunities likely to accrue in marriages protected or promoted by the specific law that binds such unions.

Construction of marriages under Section 6 of the Marriage Act presume a forever life span between the parties to it, and provides circumstances upon which this can be estopped. Religious and faith communities tend to emphasise the till-death-do-us-part adage.

Since marriages are a construction of human beings, and for the fact that no person is perfect, the law underscores the importance of couples staying apart from each other. In this scenario, two practices abound; the legal separation and divorce.

On discussing divorce, specifically reference to matrimonial property, attention must be drawn to Article 45 (3) of the Constitution, which stresses the place of equality as a fundamental and central parameter upon which marriage is formed, funded and fired. The law states that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at dissolution. The second ground on which matrimonial property is contextualised is understanding what constitutes it.

In Part III, at Section 6 of the Matrimonial Property Act of 2013, the meaning of matrimonial property is provided as matrimonial home or homes, household goods and effects jointly owned and acquired during the subsistence of the marriage. It is also indicated that couples prior to settling into a union, have a right and an opportunity to draw an agreement to determine their property rights.

Read: Who is required by law to pay child support?

 However, such an agreement is contestable in court under Section 6 (3) of the Act, which gives a window for either of the parties to petition for the annulment of the agreement if a case for fraud, coercion is raised, and for some any other reason that demonstrates blatant injustice.

Although matrimonial property and how it can be shared-out between feuding couples has been defined by the Matrimonial Property Act to help arrive at an objective decision regarding distribution whenever divorce proceedings are instituted, the courts have tended to broaden the breadth of what it constitutes. Several courts have pronounced themselves on this matter, in particular making bare the concept of contribution between and across spouses.

This is based on the need to actualise and respect Article 27 (1) and 27 (2) of the Constitution, under which the law has sought to injure the mischief and likely injustices that grow from discrimination, with a view, in part giving life to Article 28 on the right of inherent human dignity of every human being.

Distribution of family property is subsumed in what the law considers to be property ownership. This is captured under Section 7 of the Matrimonial Property Act, which resolves that where an agreement of how property is to be shared is unavailable, ownership of matrimonial property is vested in the spouses according to the contribution made by each towards acquisition, and shall be divided between them if an order of divorce is decreed by the court, or when such marriage is dissolved.

Retirement benefits in whichever form, are independently seen as income for the individual who is faced with such situation. This should at no time become a subject within divorce proceedings, however, owing the contestations caused by the various decisions of the court, where different judges have distanced their decisions from the 50:50% equal sharing pathway, there is need to canvas retirement revenue in the context of what may be a spouse’s role in the accrual since it is an after-productive work product?

Whether or not, upon divorce you deserve a share from your spouse’s retirement revenue is interpretive. What is not in doubt is the consensus between different judges that unseen work like taking care of children, availing love and creating an ambience of comfort is considered a contribution to the production of the working spouse.

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Lady Justice Matheka Mumbua and Justice Kiage amongst others may have differed over the 50:50 share, but agree on this. The presumption from these two honourable judges would be that retirement was arrived at because there was human support system that enabled the now retiree to work and earn such package. Nonetheless, the court cannot determine this unless it is asked to by a litigant, and such litigant must provide irrebuttable evidence in their submission, that their presence in a way assisted the working spouse to accrue retirement revenues.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]