Divorcing spouses must prove matrimonial property contribution – High Court

The High Court has ruled that divorcing spouses will now need to prove their matrimonial property contribution when making a claim. This proof of contribution will be required even in in cases where the matrimonial property has been registered as joint.

This ruling follows a case that involved a couple who were identified as Mr. HMN and Ms. EIK. The two had gotten married in 2015 and later dissolved their marriage in 2022. They had two children.

In the case, Mr. HMN had asked the court to divide their two matrimonial properties which included a house located at Bustani Gardens in Nairobi and a parcel of land located in Kajiado/Lorngosua.

He argued that they had acquired the property withing their marriage but wanted the property to be divided according to each spouse’s contribution.

HMN told the court that he had bought the Bustani Gardens home using money he made from his employment and that he had also taken out a mortgage in 2021 to fund construction of the home. He had then registered his ex wife as a joint owner.

He argued that even though his ex wife was gainfully employed, she did not contribute towards the purchase of the property.

Mr. HMN then went on to produce bank documents which showed deposit of the purchase price, bank statements showing that he had been paying the loan, and statements of accounts on what he spent constructing their matrimonial home.

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He then told the court that the land in Kajiado had been acquired by his former wife together with two of her sisters during their marriage, and that the property was owned in equal shares by the three sisters.

Mr. HMN further told the court that during and after their marriage, he had gone on to contribute towards household expenses, which included rent, food, utilities, medical needs, entertainment, holidays, and school fees and school related expenses for their two children.

His former wife however did not respond to the suit, and it proceeded to hearing and determination unchallenged.

“In the division of matrimonial property, contribution of either spouse is the key consideration, as marriage does not interfere with the proprietary rights of an individual. The court in each case has to properly evaluate the evidence and determine the level of contribution of each spouse towards the acquisition and, or the development of the matrimonial property in question, ” High Court judge Justice Reuben Nyambati Nyakundi ruled.

Justice Nyakundi further ruled that the man was entitled to 100 percent of the Bustani home as his former wife had not claimed it. However, he ruled that the Kajiado land was not part of the matrimonial property and belonged to his former wife and her sisters.