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End to the 50:50 share of Matrimonial Property when spouses divorce new Supreme Court Ruling

Post by : Hillary Musyoki

The supreme court of Kenya had delivered a ruling on the division of matrimonial property between spouses after a divorce.

In the ruling conveyed on Friday, the court ruled that the 50:50 formula of sharing property in the event of dissolution of marriage is not absolute instead, each party is entitled to their fair share of matrimonial property.

According to the ruling delivered by a five judge bench led by Deputy Chief Justice Philomena Mwilu, each party must prove their contribution to the matrimonial property for the court to determine what percentage he or she is entitled to.

“That a party must prove contribution to enable a court to determine the percentage available to it at the distribution of matrimonial property and that the test to determine the extend of contribution is one of a case-to-case basis,” read the ruling.

“That 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% share by fact of being married.”

Photo// new supreme court verdict. Photo Courtesy
New Verdict

The verdict which is expected to serve as a guide in resolving other disputes on matrimonial property was delivered in a 13 year old legal battle between two spouses Josepsh Ombogi Ogentoo and Martha Bosibori.

The two were married under Abagusii customary law in 1990, before getting divorced in 2008 after the marriage did not work.

During the marriage, the couple acquired a home at Tassia Estate in Embakasi and also constructed rental units.

However when divorcing, the woman moved to court seeking a share of the matrimonial property and she was awarded 30% of the share in their home and 20% share of the rental units.

Displeased with the High court’s ruling she moved to the Court Of appeal which ordered the matrimonial property and rental units in the property be shared equal between the appellant and respondent.

The matter later moved on to the Supreme court where the husband sought to appeal the Court of Appeal ruling that awarded the wife a 50%share of the property, arguing that it was too high.

In his appeal the husband claimed that his estranged wife had not made any monetary contribution to the matrimonial property, further claiming that she contributed to the break up.

The supreme court however upon consideration dismissed the appeal and set issued the new ruling where going forward a marriage party must prove their contribution to the marriage to determine there share upon divorce.

If spouses divorce the court will have to determine what you brought to the table during the marriage period.

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