The Supreme Court of Kenya has ruled that divorcing couples will not be entitled to division of property and wealth on the 50:50 basis.
In what has been seen as a historical and precedent setting ruling on family law, the Supreme Court has announced itself that when divorcing, each partner will walk away with what they contributed during the duration of the marriage.
However, one couple might be entitled to get more if they provide sufficient evidence on contribution in acquisition of the marital property.
“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 per cent share by the fact of being married,” the Supreme Court ruled.
The court further ruled that during divorce proceedings, each spouse would need to declare their contribution to enable the court divide the property in a fair manner.
“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 made this ruling in a court case in which Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori were battling over matrimonial property division.
The couple had acquired their matrimonial home at Tassia Estate within Embakasi in Nairobi and also constructed rental units on the property.
Ogentoto had 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.
Despite its declaration, the court ruled in favour of his wife that their property be divided fifty fifty.
“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,” the Supreme Court ruled.