Reports about Moroccan international footballer Achraf Hakimi's winning a divorce case pitting him against his ex-wife, Hiba Abouk, elicited mixed reactions on the division of assets.
Multiple unverified reports claimed that, in the divorce case, Hakimi's wife discovered he didn't own a single asset despite earning millions at the French club Paris Saint Germain.
It reportedly turned out that the 24-year-old had registered all his property in his mother’s name, the legal owner, although the footballer and his representatives haven't spoken on the matter.
Lawyer Wairimu Mwaura, however told Kenyans.co.ke, that there is no law barring a son from registering property in his mother's name or anyone in Kenya after the Hakimi case sparked a debate.
However, she observed that concerning Kenyan Law, two factors must be considered when reviewing Hakimi's case.
Wairimu stated that there is a difference between property ownership and possession, and the two factors would technically determine the legal approach.
"Ownership involves the absolute rights and legitimate claim to an object. It means to own the object by the owner.
"Possession is more the physical control of an object. The possessor has a better claim to the title of the object than anyone, except the owner himself," the Lawyer defined.
Legally, a property owner can transfer ownership rights under certain terms, which must not be a pre-emptive approach to evading accountability. However, a plaintiff can be tasked with proving that the transfer was made to cheat the law.
Wairimu argued that lawyers would easily call on the judge to take a Judicial Notice of the malicious transfer of ownership right.
It would, however, be a difficult case even for all the parties involved since the malicious transfer of property is neither in Kenyan Law nor within local judicial precedence.
Nevertheless, the Lawyer noted that a case where a wife demands 50 per cent of her husband's property would be handled with the Family Division courts since the Supreme Court had pronounced itself over that particular question.
On January 27, 2023, the Supreme Court of Kenya ruled that it's morally and legally wrong for a wife to demand 50 per cent of her husband's property during divorce.
In the ruling, Supreme Court stated that marital property must be shared based on fairness and not in accordance with an automatic, fixed formula that imposes a 50-50 split.
The Supreme Court Justices interpreted Article 45(1) and (3) of the 2010 Kenyan Constitution concerning the mode of distribution of property acquired during a marriage.
The seven Justices also acknowledged that there were instances where a wife did, in fact, make indirect non-monetary contributions towards the family’s welfare in the form of upkeep and welfare.
The case that began in High Court did find its way to the Court of Appeal, which ordered that property acquired during the marriage be shared 50-50 between the appellant and respondent.
In an examination of the applicable laws, the Supreme Court held that the Matrimonial Property Act 2013 does not have retroactive application and, therefore, couldn’t have applied to a summons that was filed earlier.
However, several other divorce cases have offered different rulings on various subjects, from housewives being granted assets to divorced couples contributing equally to child support.
