By Iminza Keboge
Published January 31, 2019
Well meaning people hardly ever imagine their relationship would end in divorce during their wedding. But that is not how marriages always work out for everyone.
So how do you divide what you have always considered to be your property when you, contrary to societal expectation, don’t live happily ever after in a marriage?
RELATED:Who Owns Matrimonial Property in Kenya?
This question appears to be what drove Kenya’s Federation of Women Lawyers (FIDA) to seek court interpretation of three clauses of the Constitution of Kenya that requires spouses to share property on the basis of how much each party has contributed.
But the court, in a landmark ruling in May 2018, dismissed the petition saying it could open flood gates to fraudulent marriages.
RELATED:Kenya to Collect and Keep DNA Data of Citizens
The presiding judge, John Mativo, ruled, “The interpretation preferred by the petitioner in my view is an open invitation to this court to open the door for a party to get into a marriage and walk out of it in the event of divorce with more than they deserve.”
Mativo noted that both the Court of Appeal and the High Court had upheld the principle of sharing based on a spouse’s contribution.
RELATED:Kenya Registers African Customary Marriage as Burundi Gets Rid of Cohabitation
A year earlier, in 2017, Judge Patrick Kiage of the Court of Appeal had ruled that the law “cannot be an avenue to early riches by men who would rather reap from rich women or women who see in monied men an adieu to poverty.I do not think that getting married gives a spouse a free-to-cash cheque bearing the words ‘50 per cent’.”
RELATED:Tribute to African Music Legend
The three sections of the Constitution of Kenya of 2010 FIDA had wanted to be declared unconstitutional so separating parties could share property in equal proportions regardless of what an individual had contributed but which the court upheld in May 2017 are:
7. Ownership of matrimonial property
Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.
8. Property rights in polygamous marriages
(1) If the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved, the—
(a) matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife; and
(b) matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the man and each of the wives.
(2) Despite subsection (1)(b), where it is clear by agreement of the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.
9. Acquisition of interest in property by contribution
Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.
