Spouses are not automatically entitled to 50 per cent share of the matrimonial property upon divorce, the Supreme Court has ruled settling one of the contentious issues in the country’s Family Law.
Declaring that the 50:50 formula is not absolutely applicable, the top court stated that in case of divorce, each party should leave the marriage with 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 Mwilu also held that each partner in marriage must prove his or her contribution to the family wealth to enable a court to determine the percentage available to him or her at distribution of the matrimonial property.
The court said that the test to determine the extent of contribution of a party is one of a case-to-case basis.
The decision is expected to give shape to legal squabbles between ex-husbands and ex-wives on splitting of wealth after the collapse of their marriages.
The apex judges ruled that the provisions of Article 45(3) of the Constitution on equality in a marriage do not entitle any court to vary existing proprietary rights of parties.
The said 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 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,” said the apex court.
The court held that though Article 45(3) provides that parties to a marriage are entitled to 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 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 court said.
The court held that equality in the marriage does not mean 50:50 sharing of the property upon divorce but that the distribution should be based on each individual’s contribution towards acquisition of assets and prove of the same.
The contribution may be direct such as financially or indirectly such as running of the welfare of the home and easing the burden of the spouse paying for the property or caring for children and the family at large as the other spouse works to earn money to pay for the property.
The judgment stemmed from a 13-old fight between Mr Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori.
They were married under Abagusii customary law in 1990 and on August 30, 1995 their union was formalised under the repealed Marriage Act. They divorced in 2008 after their marriage became broke down.
During the subsistence of the marriage, they acquired their matrimonial home on at Tassia Estate within Embakasi in Nairobi and constructed rental units on the property.
Mr Ogentoto moved to the Supreme Court after the Court of Appeal ordered that the house in which 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.
In the judgment dated February 23, 2018 appellate judges Alnashir Visram (retired), Wanjiru Karanja and Martha Koome (now Chief Justice) set aside the High Court’s judgment that had awarded Ms Bosibori a share of 30 per cent of the house and a 20 per cent of the rental units.
Both the house and the rentals are located in Tassia Embakasi, Nairobi. The dispute started at the High Court in May 2010.
While Ms Bosibori urged the Supreme Court to uphold the decision of the Court of Appeal and find that divorced spouses should share matrimonial property equally on 50:50 basis, Mr Ogentoto said both the High Court and the Court of Appeal erred in giving his former wife a share of the assets.
He said that the share given to his ex-wife was inordinately high since it had been established that she had not made any monetary contribution and she had contributed to the breakdown of the marriage.
Mr Ogentoto and Ms Bosibori married in 1990 under Kisii customary laws and formalised their union under the Marriage Act (now repealed) on August 30, 1995.
In the judgment, the Supreme Court yesterday dismissed the appeal and found no reason to fault the Court of Appeal’s decision.
“Like the Court of Appeal we are inclined to agree with the evidence tendered that Ms Bosibori took out loans and contributed substantially to the purchase of the matrimonial property and rental units. The 50-50 division is therefore reasonable in the specific circumstances of this case,” said the Supreme Court.
The judges in the bench were the deputy chief justice and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.
They further noted 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.
