I’m divorcing my wealthy husband; am I entitled to a share of the property he had before our marriage?
After divorce, division of matrimonial property is done based on each spouse's contribution, which is ascertained in two ways: monetary and non-monetary.
What you need to know:
- The Supreme Court held that the guiding principle in determining equal rights granted by the Constitution in Article 45(3) may only be done where parties prove their contributions.
- The Supreme Court decision reaffirmed the importance of the principle of equity and fairness in the division of matrimonial property, upon dissolution of a marriage.
Dear Vivian,
I’ve been the third wife of a tycoon for the past four years, having conducted a Christian ceremony. We are now in the process of filing for divorce, and afterwards, I shall pursue matrimonial property. The first two wives of my estranged husband passed on, hence I enjoyed the accumulated wealth of his previous marriages—going on international trips and having designer clothes. However, I did not contribute to the development of his previous properties. Advise if I can benefit from the shares of those properties on the basis of marriage?
Selina Nyaboke,
Nairobi
Dear Selina,
First, it is important to highlight that any property acquired by either spouse prior to marriage shall remain separate.
However, the other spouse may acquire beneficial interest in the property through contributing towards its improvement.
Therefore, benefitting from the properties owned by your husband before marriage will need proof of contribution.
Contribution to matrimonial property is ascertained in two ways. Monetary contribution is one way and involves the direct use of funds to purchase the property or make improvements to it.
Non-monetary contribution, on the other hand, involves domestic work and management of the matrimonial home, childcare, companionship, management of the family business for property and farm work.
The question on contribution during marriage has been a long-standing concern in many cases in Kenya.
The interpretation of this concept has been a subject of evolution and debate until the Supreme Court judgment delivered in January last year.
In this case, the court held that the guiding principle in determining equal rights granted by the Constitution in Article 45(3) may only be done where parties fulfil their obligation of proving what they are entitled to by way of contribution.
The Supreme Court decision reaffirmed the importance of the principle of equity and fairness in the division of matrimonial property, upon dissolution of a marriage.
The decision emphasised that the division of matrimonial property must be based on the contributions of each spouse, whether direct or indirect, to the acquisition and development of the same.
Though these contributions may not have been made equally or in the same form, what matters is that each party must be recognised for their contribution, no matter how small, to the acquisition of the property.
What the court was trying to do away with is the notion that marriage can be an income-generating institution with no form of contribution.
On this issue, the Court of Appeal in 2017 noted that “the thinking behind equal share in marriage was woven to convert honest people into gold diggers, pleasure lovers and marriage-hopping brides and grooms.”
Therefore, the proof of contribution that you shall provide will help the court in determining the percentage available to each party at distribution.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
