The Supreme Court of Kenya on Friday, January 27, ruled that spouses are not automatically entitled to a 50 per cent share of matrimonial property in the event of a divorce.
Whilst acknowledging the provision of the law on equitable share of matrimonial property rights, the five-judge bench led by Chief Justice Martha Koome stated that divorced spouses can only lay claim on the property they brought into the marriage.
Henceforth, spouses will have to prove their contribution to the matrimonial property amassed as opposed to the assumption that one was entitled to a 50 per cent share.
To that effect, spouses will only leave with the property they helped raise after the dissolution of their union.
The Supreme Court confirmed that the ruling will set precedence for future disputes regarding sharing of matrimonial property after divorce.
"What amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at the 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 Supreme Court ruled.
The ruling came at the tail end of a long-standing debate on whether spouses had a right to claim equal ownership of the property after a divorce.
Supreme Court judges were working on resolving the matter that was occasioned by a protracted divorce dispute between a couple in Nairobi.
A complainant moved to the country's Apex Court seeking to invalidate a ruling by the Court of Appeal that ordered him to share a property in Embakasi on a 50:50 ratio in favour of his wife in 2018.
In its ruling, the Appellate Court ruled that the divorced wife was to receive 30 per cent of their residential house and 20 per cent of a rental property in Embakasi.
The aggrieved complainant argued that the wife did not have any monetary contribution towards the property in question, hence did not warrant an absolute 50 per cent share.
Other enjoined entities in the case included the Law Society of Kenya (LSK) and the Federation of Women Lawyers (FIDA).
