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Kenya Supreme Court rules against automatic equal division of wealth upon divorce – JURIST

The Kenyan Supreme Court ruled Friday that married couples are not automatically entitled to equal shares of matrimonial property in case of divorce. This precedential ruling stated that upon divorce each partner should exit their marriage with the wealth each of them acquired individually.The case before the court concerned a decade-long legal battle between Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori. Ogentoto appealed a Court of Appeal decision to split the ownership of rental units equally between the parties to the Supreme Court. The units are in Tassia and Nairobi, some of which are on the land of their matrimonial home. Article 45 (3) of the Kenyan Constitution guarantees equality rights during the dissolution of a marriage. The court found that, such equality does not mean the redistribution of propriety rights. It therefore held that Article 45(3) does not entitle a former spouse to 50% share of assets for the mere fact of marriage.The court said that a party (spouse) must prove contribution to enable a court to determine the percentage available to him or her. This is compulsory at the distribution of matrimonial property. The four-judge bench noted that “in a marriage, the general assumption is that both spouses share everything. Also, both parties contribute towards the home or family”. Additionally, “both spouses may also work and earn income which inevitably ends up spent in the family. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013, “said the judges.The bench was comprised of the Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola..