In case of divorce, the courts will consider childbirth as a contribution from a woman to the marriage while dividing property, according to Supreme Court Judge Njoki Ndungu.
Justice Ndungu, who was speaking at a lecture on Family Law Jurisprudence at JKUAT, Karen Campus, on Wednesday, February 11, noted that despite Article 45(3) of the Constitution guaranteeing equal rights at the time of marriage, during the marriage, and at its dissolution, this equality pertains to rights and does not imply an equal division of property.
This means that in cases of dissolution of marriage, it is not automatic that the family property will be divided 50-50.
According to Justice Njoki, despite the various schools of thought on the issues of the division of property, the courts will recognise the contributions of each party while determining how much each one gets.
Justice Njoki explained that there are various types of contributions in a marriage. The direct contributions and the indirect contributions, as well as monetary contributions and non-monetary contributions.
The court views matrimonial property as matrimonial home(s), household goods and effects, and any other property jointly owned and acquired during the marriage. Property acquired before the marriage or individually, unless improved by the other spouse, is typically excluded.
Monetary contributions are direct financial inputs such as salaries, investments, or payments toward property acquisition. Non-monetary contributions are indirect inputs like domestic work, child care, companionship, and emotional support.
Using an example of a couple that is a husband and a wife with six children, Justice Njoki explained that in the case of dissolution of the union, the contribution of the wife, in terms of children would be a factor.
Going on to narrate, "So, for example, you can have a couple, a husband and a wife. The husband is employed in the formal sector. He has taken a mortgage for the house. The wife is a housewife.”
Adding, “They have about six children. The children all have to go to school; they are all fed. The home has to be run. The court will take into consideration and has taken into consideration as a contribution, even the factor of childbirth.”
“The childbirth is also considered a contribution, and it can be assessed in terms of percentage, as well as the fact that the man uses his salary to also contribute to the mortgage,” she asserted.
During the court process, each spouse must provide evidence of their contributions. The court evaluates both direct and indirect contributions to determine each party's share.
“So you can have direct, indirect, monetary, and non-monetary. All those contributions will be assessed by a court in terms of deciding how to divide matrimonial property,” Justice Njoki said.
