A spouse's ability to earn a high income does not, in itself, prove that they contributed to the acquisition of matrimonial property, a family court has ruled.
The court said financial contribution must be demonstrated through evidence of actual investment in the property, rather than inferred from a spouse's professional status or earning potential.
"A spouse's earning potential cannot substitute for proof of actual investment into the property in dispute," the ruling delivered on September 9 stated.
The family court in Nairobi made the findings while determining a dispute in which a politician from Nyanza, whose identity we have concealed for legal confidentiality, sought an equal share of matrimonial property with his estranged wife.
The court found that although the man, identified as GAM, presented an extensive professional profile showing his work with regional organisations, his high earning capacity did not constitute evidence of his contribution towards the property's acquisition.
"The respondent failed to produce primary bank statements from his accounts demonstrating recurring transfers into the vendor's or chargee's accounts," the court said.
The court, however, found that GAM's claims were not entirely unsupported. Exhibits he presented showed that he made monetary contributions amounting to Sh3.1 million, representing roughly 17 percent of the acquisition capital.
"When coupled with his indirect non-monetary contributions over 16 years of marriage, GAM's overall contribution is assessed at 25 per cent of the property in question," said the court.
Wife proved larger contribution
The court, however, found that GAM's claims were not entirely unsupported.
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The court found that JAA, the man's estranged wife, proved a 75 percent beneficial entitlement through substantial direct capital injections, full legal mortgage liability, parental advancements and continuous domestic care.
The dispute dates back to 2015, when JAA filed the case seeking, among other orders, GAM's eviction from the property.
She asked the court to declare her the sole legal owner of the property, including the buildings and improvements on it. She also sought an assessment and refund of any amount GAM was found to have contributed.
JAA further sought temporary and permanent injunctions restraining GAM, his agents or anyone acting on his behalf from entering, remaining on or dealing with the property in a manner that would interfere with her quiet possession, use and enjoyment of it.
JAA testified that during the marriage, she held executive positions with international organisations, which enabled her to acquire the property. She said it was purchased in 2005–2006 for Sh17 million, with the price rising to Sh18.2 million due to completion delays and contractual interest.
She claimed she bore the entire acquisition cost through: proceeds from the sale of a property in the city, which she said was a parental gift; Sh10.3 million advanced separately by her mother; and loans including a Sh6.2 million bank mortgage, a Sh1.5 million Sacco loan and a Sh3 million Sacco facility, all serviced through salary deductions.
'Unsuccessful' political campaigns
The court made the findings while determining a case in which a politician sought equal share of matrimonial property with his estranged wife.
Photo credit: File
JAA said GAM spent his income on unsuccessful political campaigns for a legislative seat, leaving her to provide for the family.
"He diverted his income into expensive, unsuccessful political campaigns for the parliamentary seat, leaving me to provide for the domestic upkeep and shelter of the family," she told the court.
Her mother supported the claim, saying the property sold to help finance the acquisition had been transferred to JAA as an advancement after her husband's death in 2002. She said she approved its sale to JAA's sister for Sh5.2 million to fund the acquisition, and advanced more than Sh10.33 million directly to JAA, insisting the money was not intended for GAM.
GAM: Why I deserve 50 percent
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GAM presented a contrary account, arguing that the property was acquired during the marriage as a matrimonial home through pooled resources, direct financial contributions and indirect support.
He sought a 50 percent beneficial share, arguing that while working outside the country in senior positions at multinational corporations and financial institutions, he regularly remitted money to JAA's accounts to service debts, support the household and invest in property.
GAM disputed JAA's claim over the property sold to finance the acquisition, saying her father had paid Sh1.8 million before his death while he financed the remaining Sh3.5 million. He said the property was later sold to JAA's sister for Sh5.2 million despite being worth Sh12 million, causing him a loss.
For the property in dispute, he cited a Sh1.5 million cash deposit, Sh2.5 million from joint savings, Sh732,350 in foreign currency, Sh1.2 million from motor vehicle insurance proceeds and mortgage payments.
"JAA is not the sole beneficial owner of the property as alleged. I ask for an equitable distribution of the asset at a 50 percent beneficial entitlement under the statutory presumption of resulting trust codified in the Matrimonial Property Act," he said.
GAM's sister confirmed visiting the family home but admitted she had no direct knowledge of the financial transactions or conveyancing.
The court found that the property was matrimonial property but held that its distribution had to reflect each party's proven contribution towards its acquisition. It rejected an automatic 50:50 sharing ratio, saying this could undermine equity by allowing a spouse to reap where they had not sown.
The High Court found that the sale agreement was negotiated in 2005 and concluded in 2006, when the parties were living together as husband and wife.
"Upon completion, both spouses moved into the residence alongside their three children, using it continuously as their primary family domicile from 2006 until their final domestic separation in 2014," the court said.
The court said that whether property qualifies as a matrimonial home depends on its continuous use and shared domestic purpose, rather than registration of legal title. However, it held that characterising an asset as matrimonial property does not automatically entitle a non-registered spouse to a 50 percent beneficial share upon divorce.
The court found that minor payments, including utility arrears and administrative fees, did not make GAM a purchaser of the earlier property allocated to his father-in-law. It also held that the Sh10.335 million parental contribution was presumed to be a gift or advancement to JAA, not GAM, unless proven otherwise.
Both made non-monetary contributions
The court held that both spouses, however, made non-monetary contributions during their 16-year marriage. JAA managed the household and raised their three children, while GAM, when in Kenya, paid food bills, school fees and maintenance costs, allowing her to direct salary deductions towards the mortgage.
The court also held that divorce ended the parties' right to share physical occupation of the home, declaring the property matrimonial property and apportioning the beneficial ownership at 75 per cent to JAA and 25 per cent to GAM.
The parties were directed to appoint a registered valuer within 60 days to determine the property's current market value, with valuation costs shared according to their respective interests.
JAA was given the first option to buy GAM's 25 per cent interest within 90 days of the valuation report. Upon payment, GAM must vacate within 30 days. If JAA does not exercise the option, the property must be sold within 120 days, with the net proceeds divided 75:25.
GAM was permanently barred from mortgaging, leasing or disposing of the property and must vacate upon settlement. Each party retained the furniture and personal effects in their possession.
