The Supreme Court has declared that spouses are not automatically entitled to a 50 percent share of marital property following divorce.
Declaring that the 50:50 formula is not always applicable, the Supreme Court stated that in the event of divorce, each party should leave the marriage with the property acquired during the union.
However, a spouse may be entitled to more based on his or her contribution to the acquisition of matrimonial wealth.
The five-judge panel, chaired by Deputy Chief Justice Philomena Mwilu, also ruled that each partner in a marriage must demonstrate his or her contribution to the family wealth.
The court stated that the criteria for determining the extent of a party’s contribution is case-by-case.
The ruling is anticipated to give substance to legal squabbles between ex-husbands and ex-wives over asset distribution after the dissolution of their marriages.
The Supreme Court concluded that the requirements of Article 45(3) of the Constitution on equality in marriage do not enable any court to change the parties’ existing ownership rights.
The court ruled that, while Article 45(3) states that partners to a marriage have equal rights at the moment of marriage, during the marriage, and upon the dissolution of the marriage, this does not imply an absolute split of 50:50 to be used as a matrice in the distribution of property.
