Court of Appeal upholds law on sharing matrimonial property based on contribution ‘No 50:50’
Court of Appeal upholds law on sharing matrimonial property based on contribution 'No 50:50'
Divorced partners will not be subject to automatic equal matrimonial property division in Kenya, but rather according to the contribution each party made, the Court of Appeal has affirmed.
The decision, which has upheld an earlier High Court decision, saw the appellate judges dismiss a case filed by the Federation of Women Lawyers (FIDA-Kenya), which had sought to have Section 7 of the Matrimonial Property Act declared unconstitutional.
FIDA argued that the section discriminates against women and contradicts Article 45(3) of the Constitution, which provides for equality in marriage, asking the court to declare that matrimonial property should be split equally, on a 50:50 basis, after divorce, regardless of who made what contributions.
Additionally, the women’s rights lobby maintained that the current law disadvantages women, most of whom make non-monetary contributions that are difficult to quantify.
”Subject to section 6(3), ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce or their marriage is otherwise dissolved,” FIDA said in its court papers.
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According to FIDA, domestic work, childcare, emotional support, and home management are vital contributions that often go unrecognised when courts divide property, arguing that requiring proof of contribution aids gender inequality and economic injustice against women.
However, the Attorney General, who was a respondent in the case, defended Section 7 of the Matrimonial Property Act, insisting that it was constitutional. The AG stated that the law already recognises both monetary and non-monetary contributions, ensuring fairness and protecting the rights of all spouses.
Further, the AG told the court that FIDA’s proposed interpretation would introduce automatic equality that disregards fairness and individual effort, contrary to the principles of justice.
The three-judge bench upheld the High Court’s ruling by Justice Mativo, agreeing that Section 7 of the Matrimonial Property Act is consistent with the Constitution, ruling that each spouse is entitled to a fair share of property based on their contribution, whether direct or indirect.
”At the end of the day, therefore, we do not agree with either the appellant or the Amicus Curiae when they complained that the learned Judge fell into error when he determined that section 7 of the Matrimonial Property Act was not contrary to, or inconsistent with, Article 45(3) of the Constitution. Section 7 of the Matrimonial Property Act neither violated nor contradicted Article 45(3) of the Constitution,” the judges ruled.
In their judgment, the appellate judges emphasised that contribution can take different forms, including domestic chores, child-rearing, and moral support, all of which must be factored in when determining ownership.
At the same time, they maintained that courts must evaluate evidence presented by both parties before dividing property.
The judgment reinforced a 2023 Supreme Court decision that equality in marriage does not mean a 50/50 split of property upon dissolution but equality in rights and responsibilities during the union.
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