You must prove your contribution: Supreme Court rules on who gets what after a divorce

The Supreme Court of Kenya has delivered a landmark ruling on the division of matrimonial property between spouses in the event of a divorce.

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

According to the ruling 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 extent of contribution is one of a case-to-case basis,” reads the ruling in part.

“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% share by fact of being married.”

The ruling 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 Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori.

The two were married under Abagusii customary law in 1990 before getting divorced in 2008 after the marriage irrevocably broke down.

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

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

Dissatisfied by the High Court decision, she moved to the Court of Appeal which ordered that matrimonial property and the rental units in the property be shared equally between the appellant and respondent.

“The Court of Appeal while taking note of the provisions Article 45(3) of the Constitution, found that the respondent had acquired a beneficial interest in the matrimonial property, having been married to the appellant for 18 years and therefore ordered that the matrimonial property and the rental units in the property be shared equally between the appellant and respondent,” reads court documents.

The matter would later move to the Supreme Court where the husband sought to appeal the Court of Appeal ruling that awarded the wife a 50 per cent share of the property, arguing that it was inordinately high.

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

The Supreme Court however upon consideration of the appeal dismissed the appeal and set issued the new precedent where going forward a marriage party must prove their contribution in the matrimonial property to determine they share upon divorce.