The Supreme Court in Kenya on Friday, January 27, delivered a decision that spouses are not automatically entitled to equal property share, rather, the allocation will be based on their contribution to the amassed matrimonial assets, media reports indicate.
It stated that the verdict sets precedence for future disputes regarding sharing of property after divorce – meaning that it will serve as a guide in resolving other similar cases.
Though the five-judge bench led by Chief Justice Martha Koome acknowledged the provision of the law on equitable share of matrimonial property, it stated that divorced spouses can only press a claim on the property they brought into the marriage.
The ruling concludes a long-standing debate on whether spouses had a right to claim equal ownership of the property after a divorce.
Supreme Court judges were handling a 13-year-old divorce dispute between Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori, who were a Nairobi couple. The two are said to have been married under local customary law in 1990, before getting separated in 2008 after the marriage irrevocably broke down.
The husband, complainant in the case, moved to the Supreme Court seeking to overturn a ruling by the Court of Appeal that ordered him to share a property on a 50:50 ratio in favour of his wife in 2018.
In its ruling, the Appellate Court had ruled that the divorced wife was entitled to 30 percent of their residential house and 20 percent of a rental property in Nairobi.
The aggrieved complainant argued that the wife did not have any monetary contribution to acquisition of the property in question, hence was not guaranteed an absolute 50 per cent share.
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.
However, after considering the appeal, the highest court of the land dismissed it and issued the new precedent where, from now on, a marriage party must prove their contribution to the matrimonial property to determine their share upon divorce.
Meanwhile, in Rwanda, the Ministry of Gender and Family Promotion (MIGEPROF) also proposed a bill whose provisions include that a 50/50 property allocation between a wife and husband will not be certain in the event of divorce – when they were married under the community of property regime.
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Contrary to the current law which provides that both spouses share their property equally, the bill proposes that a judge will determine who gets what depending on different factors in a divorce case.
According to MIGEPROF, the reason for this shift is that some people engage in marriage just for the sake of targeting their partners’ property, and seek divorce shortly after wedding.