The Court of Appeal has dismissed a petition filed by the Federation of Women Lawyers Kenya (FIDA-Kenya) seeking to overturn Section 7 of the Matrimonial Property Act, 2013, which bases the division of matrimonial property on each spouse’s contribution.
In Civil Appeal No. 238 of 2018, FIDA-Kenya argued that the provision is unconstitutional and violates the principle of equality in marriage as guaranteed under Article 45(3) of the Constitution. The organization maintained that women, who often make significant non-monetary contributions—such as childcare, emotional support, and managing households—are unfairly disadvantaged under the current law since such contributions are harder to quantify compared to financial input.
FIDA-Kenya’s argument: Equality in property ownership
Through its appeal, FIDA-Kenya proposed that all property acquired during marriage should be automatically owned in equal shares by both spouses, regardless of who paid for it. The organization urged the court to direct the Attorney General to amend Section 7 of the Act to reflect this equality.
Achraf Hakimi’s wife files for divorce, demands half his property, finds he owns ‘nothing’
The proposed amendment read:
“Ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce or their marriage is otherwise dissolved.”
FIDA-Kenya argued that this would fulfill the spirit of equality envisaged in the Constitution and protect spouses—especially women—whose contributions are often undervalued or invisible in monetary terms.
Court Upholds Constitutionality of Section 7
However, the Court of Appeal upheld the High Court’s earlier decision, finding Section 7 of the Matrimonial Property Act constitutional. The judges ruled that the provision already accommodates both monetary and non-monetary contributions, including domestic work, management of family businesses, and emotional support.
Quoting the Supreme Court’s earlier decision in J.O.O. vs M.B.O., the appellate court emphasized that the equality guaranteed under Article 45(3) does not mean an automatic 50:50 split of property after divorce. Instead, it calls for equity and fairness, ensuring that each spouse receives a share that reflects their true contribution to the marriage.
The judges noted that a blanket 50-50 rule could encourage individuals to enter marriages without contributing meaningfully, hoping to benefit equally in the event of divorce.
Equality means fairness, not sameness
“The stated equality under Article 45(3) means that courts must ensure that at the dissolution of a marriage, each party gets a fair share of matrimonial property based on their contribution,” the court ruled.
Wives not entitled to half of husbands’ property during divorce, Court of Appeal rules
The court reaffirmed that non-monetary contributions—such as raising children, maintaining the home, and supporting a spouse’s career—carry significant weight and must be recognized when dividing property. However, the burden of proof lies on the spouse to demonstrate these contributions.
Impact of the Ruling
The Court’s decision means that, in Kenya, property division during divorce or separation will continue to depend on each party’s proven contribution, whether financial or otherwise. The ruling reinforces the principle of fairness and discourages opportunistic behavior in marriages.
In conclusion, the Court dismissed FIDA-Kenya’s appeal, affirming that Section 7 of the Matrimonial Property Act, 2013 does not violate the Constitution.
“It is my conclusion that the impugned section does not offend any of the provisions of the Constitution as alleged. The petition is dismissed with no orders as to costs,” the Court ruled.
The decision underscores that equality in marriage does not mean uniformity, but fairness — ensuring that both spouses leave the union with what they rightfully contributed, whether in money, labour, or love.
