There has been a shift in the family law in Kenya after the supreme court of Kenya on 27th of January 2023 ruled that the distribution of marital property after divorce will not be an absolute 50:50 distribution. It will be based on the individual contribution to the property.
Article 45(3) of the Kenyan Constitution states that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage. Though this is the case, the Supreme Court Judges were keen to interpret this law.
The court noted that, the marriage provision in article 45(3) of the Constitution provided for equality of the fundamental rights of spouses during the dissolution of a marriage; but that equality does not mean that there will be re-distribution of property rights or an assumption that spouses are automatically entitled to a 50% share by the fact of being married.
The five-judge bench was led by Deputy Chief justice Philomena Mwilu, who made it clear that when a couple chooses to get a divorce, each of them must prove individual contribution to the family wealth so as to give the court ease of determining the percentage of the matrimonial property to accord each person.
The ruling made by the judges in the bench i.e., Justices Philomena Mwilu, Mohammed Ibrahim, smoking Wanjala, Njoki Ndungu, and Isaac Lenaola further noted that it is assumed that in marriage spouses share everything and on the face of it, both parties contribute towards the home and family in one way or the other however big or small.
Both spouses may also work and earn income, which inevitably ends up being spent on the family unit. The judges made it clear, that’s the essence of the matrimonial Property Act 2013. They held that equality in marriage does not mean 50:50 sharing of the property but the distribution should be made on a contribution basis.