Spouses are not automatically entitled to 50 per cent share of the matrimonial property upon divorce, the Supreme Court has ruled settling one of the contentious issues in the country’s Family Law.
Declaring that the 50:50 formula is not absolutely applicable, the top court stated that in case of divorce, each party should leave the marriage with property he or she acquired during the union though a spouse may get more based on his or her contribution to the acquisition of the matrimonial wealth.
The five-judge bench led by deputy chief justice Philomena Mwilu also held that each partner in marriage must prove his or her contribution to the family wealth to enable a court to determine the percentage available to him or her at distribution of the matrimonial property.
The court said that the test to determine the extent of contribution of a party is one of a case-to-case basis.
The decision is expected to give shape to legal squabbles between ex-husbands and ex-wives on splitting of wealth after the collapse of their marriages.
The apex judges ruled that the provisions of Article 45(3) of the Constitution on equality in a marriage do not entitle any court to vary existing proprietary rights of parties.
The said provisions only act as a means of providing for equality at the time of dissolution of marriage with each party being entitled to their fair share of matrimonial property, said the court.
The judges in the bench were the deputy chief justice and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.
