Divorced: I want half of the matrimonial property. What should I do?
The Matrimonial Property Act provides that ownership of matrimonial property vests in the spouses according to their contribution of either spouse towards its acquisition.
Hi Vivian,
I am recently divorced. During the marriage, my ex-husband contributed financially. On the other hand, I contributed to the family by catering for the welfare of the children, buying food, clothing and handling school related expenses. In addition, I provided my husband with companionship and support through decision making, problem solving, support with compassion and sympathy and attending extended family functions, even in his absence. A friend has informed me that such contribution does not matter. I wish to get half of the matrimonial property. What should I do?
Jane Mwihaki
Kikuyu
Dear Jane,
For a long time, the issue of distribution of matrimonial property upon divorce, has been subject to many legal interpretations and controversies. In fact, previously, the courts have reasoned that dividing marital property on a 50-50 basis would create a loophole for gold diggers to benefit, unfairly, from their spouses’ wealth after divorce.
The legal provisions, if read as is, was also not offering clarity. This is because, the Constitution under Article 45(3) grants equal rights to parties to a marriage at the time of the marriage, during the marriage and at the dissolution of the marriage.
On the other hand, the Matrimonial Property Act provides that ownership of matrimonial property vests in the spouses according to their contribution of either spouse towards its acquisition.
Therefore, the Supreme Court’s decision delivered on January 27, 2023, could not have come at a better time. It laid this issue to rest. First, it clarified that a spouse does not acquire any beneficial interest in matrimonial property by fact of being married only. Further, specific contribution has to be ascertained to entitle such a spouse to a specific share of the property.
It is important to note, what amounts to contribution may be either direct and monetary or indirect and non-monetary. In fact, the Supreme Court noted indirect contribution is whereby the actions of a spouse or their deeds, provided an environment that enabled the other party to have more resources to acquire the property financially. However, the test to be applied to determine the extent of contribution is ultimately one of a ‘case to case basis’.
It was an expectation by many that the Supreme Court will use the Solomonic wisdom of an outright ‘split right in the middle’. The court instead, relied on the principle of fairness. In that, each party to a marriage gets a fair share of the matrimonial property based on their contribution.
Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution.
Vivian
The writer is an Advocate of the High Court of Kenya and award-winning civil society lawyer.
