The Supreme Court of Kenya has ruled that spouses are not entitled to a 50/50 share of matrimonial assets or property after divorce.
Following the landmark ruling given by the five-man Supreme Court judges, couples are no longer automatically entitled to a 50 per cent share of property in case of a divorce. The judges said spouses would have to prove their contribution to the matrimonial property amassed before sharing in the event of a divorce.
This is opposed to the controversial traditional assumption that one was entitled to a 50 per cent share. The Court also stated that while Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during the 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 percent share by fact of being married.
The ruling came in response to an appeal filed by Joseph Ombogi Ogentoto, who sought to overturn a decision by the Court of Appeal that ordered the matrimonial property and rental units in the property be shared equally between himself and his estranged wife, Martha Bosibori Ogentoto.
The two were married under Abagusii customary law in 1990 and later formalized their union under the repealed Marriage Act in 1995. During the subsistence of the marriage, the couple acquired a matrimonial home and constructed rental units on the property. However, in 2008, the marriage broke down and the couple decided to dissolve the marriage.
The Supreme Court dismissed the appeal and in its judgement, stated that there is no retrospective application of the Matrimonial Property Act and that the applicable law to claims filed before the commencement of the Act is the Married Women Property Act, 1882. However, the Court clarified that there is nothing that bars the provisions of Article 45(3) of the Constitution from being applied retrospectively.
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