The Supreme Court, on Friday, January 27, made a landmark ruling to settle a long-standing debate regarding the question of whether or not a spouse should be assured to get a 50 per cent share of matrimonial property after a divorce.
In the ruling delivered by a five-judge bench, the court ruled that one will have to prove contribution towards the accumulation of wealth to rightfully claim a share in an eventuality of a divorce.
The five judges used the maxim of equity and equality, interpreting article 4 of the Constitution on the rights of spouses in marriage.
Deputy Chief Justice Philomena Mwilu (left) and Chief Justice Martha Koome (right) during petition hearing at the supreme court on August 31, 2022
Judiciary They decided that equality, as envisaged in the law, implies, “Contribution to the acquisition of matrimonial property may not have been done on an equal basis, as a party may have significantly contributed more in acquiring property financially as opposed to the other party.”
The judges went on to rule, “A party, though having not contributed more resources while acquiring the property, may have nonetheless, in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property..”
Consequently, spouses who do not have a direct monetary contribution towards a family’s wealth but help with the roles commonly referred to as household chores could still rightfully demand a share of the wealth.
Their judgment was anchored on various decisions made by courts in other jurisdictions which they used to inform their final ruling. One of the cases cited by the judges is one made by Lord Justice Fox in Burns v Burns in 1984.
The judge had listed roles that would qualify a spouse as one who has contributed to the wealth in question as discussed below.
Paying part of the purchase price of the matrimonial property
The judge, in his judgment, ruled that a couple may be justified to have contributed towards the accumulation of matrimonial if there is proof that he or she helped in paying part of the purchase price of a property.
Contributing regularly to the monthly payments in the acquisition of such property
In addition, the judge ruled that a spouse who has contributed regularly to monthly payments in the process of acquiring a property may as well be right in demanding a share in the vent of a divorce.
Making a substantial financial contribution to the family expenses so as to enable the mortgage instalments to be paid
Further, the ruling holds that a spouse who has not made a direct contribution towards the acquisition of property but helped to cater for other expenses will have a right in demanded a share if the couple is separated through a divorce.
According to the judge, catering for family expenses could help the breadwinner pay for mortgage instalments hence both of them have contributed to acquiring the resulting goal.
iv) Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property
Additionally, the Supreme Court of Kenya also borrowed from a ruling that established that running the welfare of a home while helping to ease the burden of a spouse could will still count as a contribution in a divorce dispute.
The ruling held that by taking care of the home, the other spouse is able to pay for the property hence a proof of a worthy contribution.
v) Caring for children and the family at large as the other spouse works to earn money to pay for the property
Lastly, the judge recognized the role played by a spouse in bringing up children and taking care of the family as at large is a substantial contribution that warrants consideration in the process of apportioning matrimonial property after a divorce.
To sum up their resolutions, the judges ruled that judges stated interpreting the law of equality, as entrenched in the constitution, to imply that matrimonial wealth should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages.
According to them, such a precedent would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property.
“In agreeing with the above decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small.
Again, and further to this, both spouses may also work and earn income, which inevitably, in most instances, always ends up being spent on the family unit. It may be the whole income or a substantial part of it, but ultimately, a percentage of it goes into the family,” read an excerpt of the ruling.
Hon. Lady Justice Philomena Mwilu, Judge of the Supreme Court, during the delivery of judgment of the Presidential Petition on September 5